BLD-099                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-3414
                                       ___________

                                    JAMES S. BIEAR,
                                             Appellant

                                             v.

                              WARDEN FORT DIX FCI
                       ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                             (D.C. Civil No. 1-13-cv-03501)
                       District Judge: Honorable Noel L. Hillman
                      ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  January 12, 2017

          Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges

                            (Opinion filed: February 9, 2017)
                                       _________

                                        OPINION*
                                        _________
PER CURIAM

       James Steven Biear, a federal prisoner proceeding pro se, appeals from the District

Court’s order dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C.

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
§ 2241. For the following reasons, we will summarily affirm the District Court’s order.

                                               I.

         On November 23, 2009, federal authorities in the Southern District of New York

arrested Biear and charged him with ten counts of money laundering, wire fraud, and

related offenses stemming from a fraud scheme.1 The next day, on November 24, 2009,

federal authorities released him on bail into the custody of New York state authorities to

answer to state criminal charges. On January 4, 2010, Biear was temporarily returned to

federal custody pursuant to a writ of habeas corpus ad prosequendum to face the federal

charges. He was ultimately convicted of all ten counts and sentenced to 120 months of

imprisonment, followed by four years of supervised release.2 Biear remained in federal

custody until April 2, 2012, when he was transferred back to New York authorities. On

August 16, 2012, Biear was convicted in the New York Supreme Court of Falsely

Reporting an Incident, N.Y. Penal Law § 240.50, and sentenced to a term of “time

served.” That same day, Biear was returned to permanent federal custody to serve the

remainder of his federal sentence.

         Several months later, while serving his sentence at Fort Dix, Biear filed a request

for an administrative remedy challenging the Bureau of Prison’s (BOP) sentence

1
 According to the superseding indictment, Biear worked as a driver and personal
assistant for Kenward Elmslie, the heir to the Pulitzer fortune. From May 2005 through
September 2007, Biear carried out a scheme to defraud Elmslie of his artwork, money,
and other valuable property. Biear then used the proceeds of the crimes committed
against Elmslie to defraud other victims.
2
    The judgment was silent as to its relationship, if any, to the pending New York action.
                                               2
computation. Specifically, Biear argued that he was entitled to credit against his federal

sentence for all the time he spent in custody prior to the start of his federal sentence—that

is, from November 24, 2009, the day of his arrest, through August 15, 2012, the day

before his federal sentence commenced. The BOP: (1) awarded credit for the day of his

arrest, November 24, 2009; (2) denied credit for the time Biear spent in custody from

November 24, 2009, through November 23, 2010, because that period was credited

toward his New York sentence;3 and (3) awarded credit for Biear’s remaining time in

custody, from November 24, 2010, through August 15, 2012.

       Biear also sought credit toward his federal sentence for the time credited to his

state sentence by requesting the BOP to designate, nunc pro tunc, the state prison as a

federal place of confinement. The BOP denied the request based on Biear’s criminal

history and institutional disciplinary records, as well as the sentencing judge’s

recommendation against extending any additional leniency. See 18 U.S.C. § 3621(b).

       In June 2013, Biear filed this petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241 in the District of New Jersey challenging the BOP’s sentencing

determinations. The District Court reviewed the record and found no error. Therefore,




3
  The BOP explained that, although the state sentenced Biear to “time served,” his term
of imprisonment could not exceed one year because the underlying conviction was
subject to a one-year maximum. See N.Y. State Penal Law §§ 240.50, 70.15(1). Thus,
the BOP determined that Biear was in state custody from November 24, 2009, the day of
his arrest, until one-year later, November 23, 2010.

                                              3
by order entered August 2, 2016, the District Court denied the petition. This timely

appeal followed.4

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291.5 A petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241 is available to a federal prisoner who, like

Biear, challenges the execution of his sentence. See Cardona v. Bledsoe, 681 F.3d 533,

535 (3d Cir. 2012). We exercise plenary review over the District Court’s legal

conclusions and apply a clearly erroneous standard to its factual findings. See id.

Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 239 n.3 (3d Cir. 2005).

       We will summarily affirm the District Court’s order because this appeal does not

present a substantial question. See Third Circuit LAR 27.4 and I.O.P. 10.6. The District

Court correctly upheld the BOP’s calculation of Biear’s federal release date. First, the

BOP properly determined that Biear’s federal sentence commenced on August 16, 2012,

when the New York court sentenced him to “time served,” discharged him from New

York custody, and released him into the exclusive custody of federal authorities. See 18

U.S.C. § 3585(a). Next, the BOP properly granted Biear custody credit for: (1) the day of

November 23, 2009, the date federal authorities arrested him and released him into state


4
 The record reflects that Biear subsequently sought reconsideration of the District
Court’s decision, and that, by order entered September 1, 2016, the District Court denied
his request. That order is not presently before us. See Fed. R. App. P. 4(a)(4)(B)(ii).
5
 A certificate of appealability is not required to appeal from the denial of a § 2241
petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009).
                                             4
custody; and (2) the period from November 24, 2010, the day after his one-year state

sentence expired, through August 15, 2012, the day before his federal sentence

commenced. See 18 U.S.C. § 3585(b). The BOP also properly declined to double-count

the one-year period (from November 24, 2009, through November 23, 2010) that was

credited to his New York sentence. See 18 U.S.C. § 3585(b) (providing that a federal

inmate may not receive credit against his federal sentence for prior custody that has been

“credited against another sentence”). Lastly, we agree with the District Court that the

BOP did not abuse its “wide discretion” in denying Biear’s application for a nunc pro

tunc designation. See Barden v. Keohane, 921 F.2d 476, 482-83 (3d Cir. 1990).

       We have reviewed Biear’s arguments on appeal and conclude that they are

unpersuasive.

                                            III.

       Accordingly, we will summarily affirm the District Court’s judgment.6




6
 To the extent that Biear includes in his Notice of Appeal a request for appointment of
appellate counsel, his request is denied as moot.
                                             5