Charles Elwell v. Scott Fisher
2013 U.S. App. LEXIS 11364
8th Cir.2013Background
- Elwell, a federal prisoner, challenged BOP’s denial of nunc pro tunc designation and credit for time in state custody prior to February 6, 2009.
- Iowa initially held primary custody from March 2007 after arrest and bond issues; federal writ temporarily placed him with the U.S. for proceedings.
- Federal sentencing occurred in November 2007 (66 months) without a stated concurrent/consecutive design.
- State resentencing on February 6, 2009 dictated time-served from March 2007 arrest, affecting credit purposes.
- BOP applied primary-jurisdiction doctrine, held state had priority, and denied federal credit and nunc pro tunc designation.
- Elwell exhausted administrative remedies and filed § 2241 in Minnesota after district courts denied relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BOP and courts properly applied primary jurisdiction | Elwell argues misapplication of primary jurisdiction. | BOP adhered to primary-jurisdiction rule. | No error; primary jurisdiction correctly applied. |
| Whether silence of federal court on concurrency triggers credit | Elwell says silence supports concurrency and federal credit. | District court silence implies consecutive terms; no credit for pre-2009 time. | Consecutive sentences default; no pre-2009 federal credit. |
| Whether time credited by state precludes federal credit | Elwell seeks federal credit for same pre-2009 period. | § 3585(b) bars double credit. | Barred by § 3585(b). |
| Whether BOP denial of nunc pro tunc designation was an abuse | BOP abused discretion by misreading intent and circumstances. | BOP properly weighed § 3621 factors and district court intent. | Not an abuse of discretion; designation affirmed. |
| Whether futility theory supports credit or concurrency | Elwell relies on futility to treat as concurrent. | Futility rejected; Setser framework controls. | Futility theory not recognized; consistent with Setser. |
Key Cases Cited
- United States v. Hayes, 535 F.3d 907 (8th Cir. 2008) (primary jurisdiction; custody timing)
- Binford v. United States, 436 F.3d 1252 (10th Cir. 2006) (start of sentence; custody for serving sentence)
- United States v. Cole, 416 F.3d 894 (8th Cir. 2005) (which sovereign retains primary jurisdiction)
- Dowdle v. United States, 217 F.3d 610 (8th Cir. 2000) (state court cannot relinquish primary jurisdiction effectively)
- Setser v. United States, 132 S. Ct. 1463 (2012) (BOP discretion vs. sentencing authority; concurrency to yet-to-be-imposed state sentence)
- Fegans v. United States, 506 F.3d 1101 (8th Cir. 2007) (BOP discretion under § 3621; review limited; consider district court intent)
- Mayotte v. United States, 249 F.3d 797 (8th Cir. 2001) (authority to designate concurrent/consecutive to anticipated state sentence)