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BOP May Disregard State Court Orders When Reviewing Whether to Run State/Federal Sentences Concurrent

By Brandon Sample

On May 7, 2010, the U.S. Court of Appeals for the Ninth Circuit affirmed the denial of a habeas petition challenging the Bureau of Prisons (BOP) refusal to grant a nunc pro tunc designation.

Charles Reynolds was arrested by state authorities after attempting to pass a forged check. While in state custody, Reynolds was taken on a federal writ to answer identity theft and bank fraud charges. Reynolds received 71 months in federal prison, and was returned to state custody shortly thereafter.

After returning to state custody, Reynolds was sentenced to fifteen years in state prison. Reynolds's state judge ordered that Reynolds's state sentence run concurrent with his federal sentence. However, because Reynolds was technically in state custody when he received his federal time, Reynolds had to serve his state time first before beginning his federal sentence.

After finishing his state sentence and entering federal prison, Reynolds asked the BOP to give him a nunc pro tunc designation under Program Statement 5160.05, Designation of State Institution for Service of Federal Sentence.

A nunc pro tunc designation allows the BOP to start a federal prisoner's sentence on the date it was imposed by retroactively designating the prisoner's state place of imprisonment as the facility for service of a federal sentence. In other words, a nunc pro tunc designation lets the BOP treat a prisoner's state and federal sentences as concurrent.

In support of his request, Reynolds pointed to an order from his state judge running his state and federal sentences concurrent. The BOP, however, refused to give any weight to the state judge's order, denying Reynolds's request before eventually granting it after Reynolds's federal sentencing judge indicated that he was unopposed.

On appeal, the Ninth Circuit found no error in the BOP's initial denial of Reynolds's request. "Reynolds's arguments fail because they are contrary to [Taylor v. Sawyer, 284 F.3d 1143 (9th Cir. 2002)], in which we upheld the BOP's authority to decline to make a nunc pro tunc designation of a state prison notwithstanding a state court's contrary order," the court wrote.

The judgment of the district court was accordingly affirmed. See: Reynolds v. Thomas, 603 F.3d 1144 (9th Cir. 2010).

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Related legal case

Reynolds v. Thomas