Joseph Bolton v. United States ( 2017 )

Case: 16-11308 Document: 00514077865 Page: 1 Date Filed: 07/18/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11308 FILED
Summary Calendar July 18, 2017
Lyle W. Cayce
Clerk
JOSEPH ARTHUR BOLTON,
Petitioner-Appellant
v.
UNITED STATES OF AMERICA,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CV-582
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Joseph Arthur Bolton, federal prisoner # 35674-177 and Texas prisoner
# 1816000, appeals the district court’s denial of his postjudgment “motion
seeking relief from federal detainer.” Bolton’s term of supervised release for
threatening the president of the United States was revoked, and his 14-month
revocation sentence was ordered to be served consecutively to any state
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-11308
sentence imposed. Bolton’s postjudgment motion requested that his federal
revocation sentence be ordered to run concurrently to his state sentence.
On appeal, Bolton, who is in state custody, argues that he is entitled to
credit towards his federal revocation sentence for his time spent in state
custody because his state confinement resulted from his federal probation
officer’s communication with a state police officer and because the federal
detainer made him unable to post bail in state court. He also argues that his
sentences should run concurrently in the interest of justice because counsel
failed to raise the aforementioned issues before the district court. Those
arguments, raised for the first time on appeal, will not be considered. See
Wilson v. Roy, 643 F.3d 433, 435 n.1 (5th Cir. 2011).
No provision conferred the district court with jurisdiction to consider
Bolton’s postjudgment motion. Although the district court construed the
motion as being raised pursuant to 28 U.S.C. § 2241, Bolton was incarcerated
in the Southern District of Texas, and thus, the Northern District of Texas did
not have jurisdiction to consider it under § 2241. See Pack v. Yusuff, 218 F.3d
448, 451 (5th Cir. 2000). Moreover, as Bolton’s motion before the district court
did not raise any errors that occurred at or prior to sentencing, 28 U.S.C. § 2255
did not provide a jurisdictional basis for the motion. Tolliver v. Dobre, 211 F.3d
876, 877-78 (5th Cir. 2000).
The motion could not have been filed pursuant to either 18 U.S.C. § 3742
or 18 U.S.C. § 3582(c). Regarding § 3742, Bolton’s time for filing a direct appeal
ended in 2013. As to § 3582(c), Bolton, not the Bureau of Prisons, filed the
motion. Moreover, in the motion, Bolton did not base his request for relief on
any action of the United States Sentencing Commission.
Federal Rules of Criminal Procedure 35 and 36 likewise do not apply.
Bolton’s motion and circumstances do not fit within any of the provisions of
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No. 16-11308
Rule 35. Moreover, his motion, which essentially sought credit for time served
in state prison, is not cognizable under Rule 36. See United States v. Mares,
868 F.2d 151, 151 (5th Cir. 1989).
In light of the foregoing, we AFFIRM on the alternative basis that the
district court lacked jurisdiction to consider the motion. See United States v.
Early, 27 F.3d 140, 141-42 (5th Cir. 1994). Bolton’s motion for the appointment
of counsel is DENIED.
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