filed as amended december 27 1990. as amended march 5 1991.: December 13, 1990.
On Appeal from the United States District Court for the Middle District of Pennsylvania; D.C. Civil Action No. 88-1788.
Sloviter, Hutchinson and Nygaard, Circuit Judges.
HUTCHINSON, Circuit Judge
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.*fn1
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*fn2 as a place for him to serve his federal sentence.*fn3 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.*fn4 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. § 4082(b) (West 1985). Any further court review of the Bureau's action will be limited to abuse of discretion.
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 ...