Reescano v. United States ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 21, 2009
No. 08-41310
Summary Calendar Charles R. Fulbruge III
Clerk
ANDRE RAYMOND REESCANO,
Petitioner-Appellant
v.
UNITED STATES OF AMERICA,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:07-CV-308
Before BENAVIDES, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Andre Raymond Reescano, federal prisoner # 07139-078, was convicted of
robbery and firearm crimes and sentenced to 111 months of imprisonment. He
was subsequently sentenced to nine years of imprisonment on state charges that
he says arose from the same conduct as his federal charges. The state court
ordered the state sentence to run concurrently with the federal sentence.
Reescano filed an action that was partly a 28 U.S.C. § 2255 motion and
partly a petition under 28 U.S.C. § 2241. Pursuant to § 2255, Reescano
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-41310
challenged the district court’s failure to order his federal sentence to run
concurrently with the not-yet-imposed state sentence under U.S.S.G.§ 5G1.3(b).
He also contended that his counsel was ineffective for failing to request that the
federal sentence run concurrently with the state sentence. Pursuant to § 2241,
Reescano contended that the Bureau of Prisons (BOP) improperly failed to give
him credit for time served on his state sentence. The district court dismissed the
§ 2255 motion as untimely and denied a certificate of appealability (COA). The
court declined to recognize the § 2241 claims. Reescano now seeks a COA in this
court.
We deny a COA because Reescano has failed to show both “that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Houser v. Dretke, 395 F.3d 560, 562 (5th Cir.
2004).
The district court erred by failing to note that Reescano’s claims against
the BOP arose under § 2241 because they challenged the execution of his
sentence and not its imposition. See United States v. Tubwell, 37 F.3d 175, 177
(5th Cir. 1994) (construing as a § 2241 petition prisoner’s claim that his federal
sentence should be served concurrently with a state sentence). No COA is
required as to the § 2241 claims, Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.
2001), and we may affirm the dismissal of those claims for any valid and
apparent reason. See United States v. Tello, 9 F.3d 1119, 1128 (5th Cir. 1993).
Accordingly, we affirm the dismissal of the § 2241 claims because federal
authorities are not bound by state court orders for concurrent sentences; nor are
they required to accept custody of state prisoners prior to the completion of their
state sentences. See Leal v. Tombone, 341 F.3d 427, 427-30 (5th Cir. 2003).
JUDGMENT AFFIRMED IN PART; COA DENIED.
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