United States District Court, D. South Carolina, Florence Division
WESTON HOUCK UNITED STATES DISTRICT JUDGE
defendant, Perry Peterkin (the "defendant"), is
currently serving a one hundred-thirty eight month sentence
imposed by this Court on February 20, 1997, after pleading
guilty pursuant to the terms of a written plea agreement to
carjacking, in violation of 18 U.S.C. § 2119, and to the
illegal use of a firearm during the commission of a violent
crime, in violation of 18 U.S.C. §
924(c)(1). (Am. J. 1, ECF No. 14). The defendant,
proceeding pro se, has filed a motion requesting that the
Court issue a belated statement directing the Federal Bureau
of Prisons ("BOP") to designate, nunc pro tunc, the
South Carolina Department of Corrections as the
defendant's place of imprisonment. (Mot. for
Statement, ECF No. 18). The defendant contends that
Barden v. Keohane. 921 F.2d 476, 484 (3rd Cir.
1990), permits this Court to do so, thereby allowing the
defendant to "serve in state custody ... the remainder
of his federal sentence." (Mot. for Statement 3).
defendant receives a sentence of imprisonment at a federal
facility, the BOP is statutorily authorized to designate the
place of confinement. 18 U.S.C. § 3621(b). "A
federal sentence does not commence until the Attorney General
receives the defendant into . . . custody for service of that
sentence." United States v. Evans. 159 F.3d
908, 911 (4th Cir. 1998) (citing 18 U.S.C. § 3585(a)).
Under certain circumstances, a sentence may commence prior to
the date that the defendant is taken into custody by federal
authorities. Barden, 921 F.2d at 480. For example, a prisoner
may seek a nunc pro tunc designation from the BOP to
designate the state facility in which a prisoner served a
prior sentence as the place of federal custody. Id.
As a result of this designation, the time that the inmate
served in state custody is credited against the time on the
inmate's federal sentence, effectively causing the state
and federal sentences to run concurrently. Trowell v.
Beeler. 135 F.App'x 590, 595 (4th Cir. 2005) (per
the BOP is required to consider the inmate's request for
a nunc pro tunc designation, it is not compelled to grant it.
Barden. 921 F.2d at 478. If the BOP determines that
the designation request may be appropriate, it must write to
the sentencing court in order to determine whether the court
objects to the proposed designation. Brown v. Zych,
Civil Action No. 7:11-cv-00605, 2012 WL 5386339, at *1 (W.D.
Va. Nov. 1, 2012). If the sentencing judge expresses no
objection to the sentences being designated to run
concurrently, then the BOP may grant the request for the nunc
pro tunc designation. Id. at * 1-2; BOP Program
Statement 5160.05 at 6 (Jan. 16, 2003).
present case, the Court understands the defendant's
"Request for Belated Statement" to be a request for
a statement from this Court as to whether it has any
objections to having the defendant's time that had been
served in state custody credited toward his federal sentence
of one hundred and thirty-eight months. (Mot. for Statement
2). However, as a threshold issue, it is unclear whether the
defendant has exhausted his administrative remedies by first
seeking such a nunc pro tunc designation from the BOP before
petitioning for relief from the Court. See United States
v. Mercado. 37 F.App'x 698, 699 (4th Cir. 2002) (per
curiam) (holding that a prisoner seeking a nunc pro tunc
designation for credit against his sentence for time spent in
custody must first exhaust his administrative remedies with
the BOP); Hardin v. United States. C/ANo.
7:12-cv-01818-GRA, Cr. No. 7:00-cr-00314-GRA-2, 2012 WL
3945314, at *2 (D.S.C. Sept. 10, 2012) (finding that an
inmate had failed to exhaust his administrative remedies
before seeking relief from the court because the inmate had
failed to request a nunc pro tunc designation from the BOP).
the defendant asserts in his motion that the BOP "sought
a statement from defendant Peterkin's federal sentencing
judge as to whether BOP should grant [a] nunc pro tunc
designation" to the defendant (Mot. for Statement 2),
the Court is not aware of any such request from the BOP and
has no record of ever having received one. In the absence of
any record of such a request from the BOP, the Court must
conclude that the defendant has failed to exhaust his
administrative remedies prior to seeking redress from the
defendant's reliance on Barden, in which the federal
prisoner making the request had "without success ...
exhausted the means he ha[d] available to get the Bureau [of
Prisons] to even consider his plight, " is therefore
misplaced. Barden, 921 F.2d at 479. The prisoner in
Barden was able to successfully turn to the federal
court for relief because he turned to it only as a means of
last resort, after the BOP had refused to consider his
request for a nunc pro tunc designation. Id. In the
present case, the defendant's unsupported assertion that
he had sought a statement from the BOP is insufficient to
show that he has "exhausted the means . . . available,
" in order to permit him to petition the Court for
relief. (Id; see also Mot. for Statement 2-3).
defendant has failed to carry his burden to show he exhausted
his administrative remedies prior to petitioning the Court,
the Court lacks the jurisdiction to entertain the
defendant's request. To the extent that the defendant
invites this Court to contact the BOP regarding the
defendant's request for a nunc pro tunc designation to
state prison, the Court declines to do so. Accordingly, the
defendant's "Request for Belated Statement from
Sentencing Judge as to Whether FBOP Should Designate
Defendant to State Department of Corrections" (ECF No.
18) is denied.
IS SO ORDERED.