United States v. Benjamen White, Jr. ( 2010 )

Case: 09-10648 Document: 00511049994 Page: 1 Date Filed: 03/12/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 12, 2010
No. 09-10648
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BENJAMEN FRANKLIN WHITE, JR., also known as Benjamin Franklin White,
Jr., also known as Lynn White,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:02-CR-4-1
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
In 2002, Benjamen Franklin White, Jr., federal prisoner # 28122-177 pled
guilty to one count of being a convicted felon in possession of a firearm and was
sentenced to 96 months’ imprisonment.
More than five years later, White filed a pleading entitled, “Request for
Nunc Pro Tunc Clarification of Judgment,” asserting that, following his federal
sentencing, he had been incarcerated in a state prison facility for approximately
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-10648 Document: 00511049994 Page: 2 Date Filed: 03/12/2010
No. 09-10648
six years. He contended that he was entitled to credit against his federal
sentence for the time spent in state custody. The district court denied White’s
motion without assigning reasons.
White now appeals the denial of his pro se motion. He argues that a
remand is required because the district court did not assign reasons for the
denial of relief. Because the record conclusively shows that White is entitled to
no relief, a statement of reasons was not required.1
White argues that he is entitled to credit on his federal sentence for the
six-year period he spent in state custody following his sentencing by the district
court. White’s claim for credit on his federal sentence for the time he was
incarcerated in state prison should be construed as seeking habeas relief under
28 U.S.C. § 2241 2 because he is challenging the manner in which his sentence
is being executed rather than the legality of his conviction or the validity of his
sentence.3 This court “reviews de novo the dismissal of a § 2241 petition on the
pleadings.”4
“To entertain a § 2241 habeas petition, the district court must, upon the
filing of the petition, have jurisdiction over the prisoner or his custodian.” 5
White filed his pleading in the Northern District of Texas while incarcerated in
a federal prison facility in Arkansas. As a result, the district court was without
jurisdiction to consider the merits of White’s petition.6
1
See United States v. Edwards, 711 F.2d 633, 633 (5th Cir. 1983).
2
See Leal v. Tombone, 341 F.3d 427, 427–30 (5th Cir. 2003); United States
v. Tubwell, 37 F.3d 175, 177 (5th Cir. 1994).
3
United States v. Brown, 753 F.2d 455, 456 (5th Cir. 1985).
4
Garcia v. Reno, 234 F.3d 257, 258 (5th Cir. 2000).
5
Brown, 753 F.2d at 456.
6
See id.2
Case: 09-10648 Document: 00511049994 Page: 3 Date Filed: 03/12/2010
No. 09-10648
We modify the judgment of the district court to explicitly reflect a
dismissal for want of jurisdiction to entertain White’s request. The judgment is
affirmed as so modified.
AFFIRMED AS MODIFIED.
3