Barden v. Keohane, 89-5712

Decision Date19 January 1990
Docket NumberNo. 89-5712,89-5712
Citation921 F.2d 476
PartiesKevin L. BARDEN, Appellant, v. Patrick KEOHANE, Warden, Appellee. . Submitted Under Third Circuit Rule 12(6)
CourtU.S. Court of Appeals — Third Circuit

Kevin L. Barden, Terre Haute, Ind., pro se.

Dennis C. Pfannenschmidt, U.S. Atty's. Office, Harrisburg, Pa., for appellee.

Before SLOVITER, HUTCHINSON and NYGAARD, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

I.

Kevin Barden (Barden), while a prisoner in the United States Penitentiary at Lewisburg, Pennsylvania, filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania on October 31, 1988. 1 The district court ordered the Penitentiary's Warden, Patrick Keohane (Keohane), to show cause why the writ should not be granted; but, ultimately, the district court denied Barden's petition. Barden filed a motion for reconsideration pursuant to Federal Rule of Civil Procedure 59(e). On reconsideration, the district court refused to disturb its order denying Barden's petition. Barden filed a timely appeal, and the district court granted Barden's motion for leave to appeal in forma pauperis.

Barden is serving a twenty-year term of imprisonment for bank robbery. The government says Barden has almost seventeen years to go until completion of his federal sentence because his federal term could not begin until February 12, 1987, the day Barden arrived at a federal facility for service of his federal sentence. Before his arrival in federal custody, Barden had served more than ten years on state sentences that the state sentencing court intended to run concurrently with Barden's federal sentence.

Barden says the federal authorities made a mistake in failing to designate the state prison as the place of confinement for his federal sentence. This designation, he argues, is a necessary prerequisite to carrying out the intention of the state sentencing court that his state sentence be served concurrently with his federal sentence. Barden claims that the federal authorities can and should correct their mistake by a nunc pro tunc exercise of their power to designate the place of confinement, and that he has a right to have an administrative determination of this issue because he would be eligible for an earlier release if the state prison were designated nunc pro tunc 2 as a place for him to serve his federal sentence. 3 The federal government insists that all that matters is the date Barden was turned over from state to federal custody and that the intention of the state court that Barden's state sentence run concurrently with his federal sentence is immaterial.

We agree with Barden that the federal government has the statutory authority to make the nunc pro tunc designation Barden desires. On this record, Barden is entitled to a writ of habeas corpus to compel the Bureau to consider his case. We do not pass upon Barden's contention that he is entitled to a favorable exercise of the broad discretion the Federal Bureau of Prisons (Bureau) has in acting on his request. Instead, we hold only that the federal authorities have an obligation, on the peculiar facts before us, to look at Barden's case and exercise the discretion the applicable statute grants the Bureau to decide whether the state prison in which he served his sentence should be designated as a place of federal confinement nunc pro tunc. 4 The answer to that question will depend on the Bureau's practice in making such designations, as well as its assessment of Barden's conduct in custody, the nature of his crime and all the other factors that govern penal authorities' consideration of a prisoner's request for relief from the strict enforcement of his sentence.

We will therefore remand this matter to the district court with directions that it in turn remand the matter to the Bureau so that the Bureau can promptly review Barden's claim and thereafter act to grant or deny it in accordance with the broad discretion the Bureau is given by the applicable statute. See 18 U.S.C.A. Sec. 4082(b) (West 1985). Any further court review of the Bureau's action will be limited to abuse of discretion.

II.

On April 28, 1975, Barden was arrested by Pennsylvania authorities and charged with robbery, rape and kidnapping. While awaiting trial on the state charges, Barden was given over to the custody of federal authorities on October 21, 1975, under a writ of habeas corpus ad prosequendum. He was sentenced to a prison term of twenty years on a bank robbery conviction by the United States District Court for the Western District of Pennsylvania and then returned to state custody.

The Court of Common Pleas of Beaver County, Pennsylvania, sentenced Barden to a term of eleven-to-thirty years on the state charges on November 12, 1975, and ordered that the state sentence run concurrently with the federal sentence. Barden then began to serve his state sentence in the State Correctional Institution at Rockview, Pennsylvania, where a federal detainer was lodged against him. On April 6, 1976, an additional state sentence of one-to-five years, consecutive to the previous state sentence of eleven to thirty years, was imposed on Barden on other charges. Barden was paroled from state custody on December 15, 1986, and turned over to federal authorities under the detainer. He entered the Lewisburg Penitentiary on February 12, 1987, and began serving his twenty-year federal sentence for bank robbery.

Beginning May 7, 1987, Barden, attempting to gain credit for the time he served in state prison by having the State Correctional Institution at Rockview designated a federal facility nunc pro tunc, sought administrative relief from the Bureau. When these efforts failed, he sought judicial relief in the district court.

III.

The district court had jurisdiction over Barden's habeas corpus petition pursuant to 28 U.S.C.A. Sec. 2241 (West 1971). Barden's petition is actionable under Sec. 2241 because he is in custody and he attacks the term of that custody. See Preiser v. Rodriguez, 411 U.S. 475, 487, 93 S.Ct. 1827, 1835, 36 L.Ed.2d 439 (1973); Braden v 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 488-89, 93 S.Ct. 1123, 1126, 35 L.Ed.2d 443 (1973); Peyton v. Rowe, 391 U.S. 54, 66-67, 88 S.Ct. 1549, 1555-56, 20 L.Ed.2d 426 (1968); Chatman-Bey v. Thornburgh, 864 F.2d 804, 806-10 (D.C.Cir.1988) (in banc) (habeas action under Sec. 2241 proper and exclusive remedy to compel consideration of federal prisoner's claim that prison authorities failed to properly aggregate consecutive sentences in determining parole eligibility). 5 These cases necessarily imply that issues which affect a prisoner's term are fundamental issues of liberty that fall within our jurisdiction under 28 U.S.C.A. Sec. 2241 (West 1971). We do not think this is affected by the fact that Barden remains dependent on the discretion of the Bureau. 6 He has, without success, exhausted the means he has available to get the Bureau even to consider his plight. Therefore, judicial action is necessary if he is to have any chance of gaining credit against his federal sentence for the twelve years of his life he spent in state prison, credit he could get if the Bureau decides to designate the state prison as a place of federal confinement.

The Bureau's failure even to consider Barden's claim for relief from possible mistake or inadvertence in failing to designate the state prison as a place of federal confinement carries a serious potential for a miscarriage of justice. Accordingly, the Bureau's error is fundamental and can be corrected through habeas. See Murray v. Carrier, 477 U.S. 478, 495, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986) (habeas available to avoid potentially serious miscarriage of justice).

We have appellate jurisdiction over Barden's appeal pursuant to 28 U.S.C.A. Sec. 1291 (West Supp.1990), and exercise plenary review over the district court's conclusion of law that Barden could not be afforded any relief, the conclusion upon which the district court based its denial of Barden's petition for a writ of habeas corpus. See Henderson v. Carlson, 812 F.2d 874, 879-80 (3d Cir.), cert. denied, 484 U.S. 837, 108 S.Ct. 120, 98 L.Ed.2d 79 (1987).

IV.

On the merits, the question before us is a limited one, namely, whether the district court erred in denying Barden's petition for a writ of habeas corpus because the Bureau, in reviewing Barden's application, mistakenly failed to recognize its power to have a state facility designated nunc pro tunc as a place of federal confinement where Barden could gain credit against his federal sentence for the time he served there.

Keohane argues that the district court's ruling should be affirmed because a federal court is without the power to make such a nunc pro tunc designation. The power to make a nunc pro tunc designation, he notes, is vested solely in the Bureau. Combining the rule that a federal prisoner's sentence does not begin until he is received into federal custody with the rule that concurrency is not presumed in the absence of an agreement between federal and state authorities, Keohane says that Barden is properly in federal custody and must remain there to serve out his twenty-year sentence, unless the Bureau acts. The government's argument that the Bureau has sole power to act collides with the Bureau's failure to recognize any such power in Barden's case, and so these two rules are not dispositive of this case.

In his opening brief, Barden appears to raise a "quasi-equal protection" argument. He focuses this argument upon the district court's failure to alter its order denying Barden's habeas petition in response to his Rule 59(e) motion. In the motion for reconsideration, Barden attempted to place evidence before the district court showing that Keohane refused to return to Barden documents that Barden claims would...

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