Castro Flores v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 18, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-50818
Summary Calendar
SERENTO CASTRO FLORES,
Petitioner-Appellant-Cross-Appellee,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee-Cross-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:03-CV-299
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Before JOLLY, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Serento** Flores Castro (“Flores”), who is currently
incarcerated as a state prisoner in Texas (# 925694), has filed a
motion for a certificate of appealability (“COA”) and a motion to
proceed in forma pauperis (“IFP”) on appeal from the district
court’s denial of his habeas corpus petition, purportedly filed
pursuant to 28 U.S.C. § 2254 but construed by the district court
*
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this opinion should not be published and is not precedent except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.
**
Although this spelling of Flores’s first name appears on
the court’s docket sheet, “Serenio” also appears in the record
and appears to be the correct spelling.
No. 04-50818
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as sounding under 28 U.S.C. § 2241. Flores is serving a seven-
year state prison term for aggravated assault on a public
servant, a sentence that is running concurrently with several
other state sentences. Three days before these state sentences
were handed down, Flores had been sentenced in federal district
court to 77 months in prison and three years of supervised
release, after having pleaded guilty to illegal re-entry, a
violation of 8 U.S.C. § 1326. The state court’s sentencing order
stated that his state sentences were to run concurrently with the
federal sentence.
The district court properly treated Flores’s petition as
seeking relief under 28 U.S.C. § 2241, because Flores argued
therein that the Federal Bureau of Prisons (“BOP”) was failing to
credit his federal sentence with the time he had spent in state
prison, which he maintained was required by the state judge’s
concurrent-sentencing order. See Davis v. Fechtel, 150 F.3d 486,
487 (5th Cir. 1998) (court may liberally construe pro se
pleading, where appropriate, as habeas corpus petition). He also
complained that federal authorities had failed to deliver him to
federal prison to serve his federal sentence. Because Flores is
primarily attacking the execution of his federal sentence, he
claims fall under 28 U.S.C. § 2241 rather than 28 U.S.C. § 2254.
See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
Because a prisoner does not need a COA to appeal the denial of
No. 04-50818
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relief under 28 U.S.C. § 2241, Flores’s application for a COA is
DENIED as unnecessary.
To proceed IFP on appeal, Flores must show both that he is
economically eligible and that his appeal raises a nonfrivolous
issue. See Jackson v. Dallas Police Dep’t, 811 F.2d 260, 261
(5th Cir. 1986). Although Flores’s financial affidavit and
inmate trust account statement reflect that he is financially
eligible to proceed IFP, he has not established that his appeal
will raise a nonfrivolous issue. No binding legal authority
requires the federal BOP or the United States Attorney General to
comply with a state court’s sentencing order that his federal
sentence run concurrently with his state sentences, and no
authority requires federal marshals to immediately deliver a
federal prisoner to a federal facility for the service of his
sentence.*** See Leal v. Tombone, 341 F.3d 427, 429-30 (5th Cir.
2003). Because Flores’s appeal does not present a nonfrivolous
issue, his motion to proceed IFP on appeal is DENIED. Flores’s
appeal is without arguable merit, see Howard v. King, 707 F.2d
215, 219-20 (5th Cir. 1983), and it is DISMISSED as frivolous.
5TH CIR. R. 42.2.
***
To the extent that Flores argues that his state trial
attorneys performed ineffectively by convincing him to enter into
the plea agreement in state court, based on a promise that his
state sentences would run concurrently with his federal sentence,
that claim is raised for the first time in Flores’s COA
application and need not be considered by this court. See
Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th Cir. 1998).
No. 04-50818
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Respondent Dretke has filed a cross-appeal in which he seeks
to challenge the district court’s denial, as moot, of his motion
to be dismissed as party respondent. Although the district court
should have required Flores to amend his petition to name the
proper federal custodian, its failure to cure what amounted to a
mere procedural defect, see West v. State of La., 478 F.2d 1026,
1029-30 (5th Cir. 1973), renders it unnecessary to consider
Dretke’s cross-appeal. See, e.g., Singleton v. Guangzhou Ocean
Shipping Co., 79 F.3d 26, 28 (5th Cir. 1996). Dretke’s cross-
appeal is therefore DISMISSED as moot.
COA DENIED AS UNNECESSARY; IFP DENIED; APPEAL DISMISSED AS
FRIVOLOUS; CROSS-APPEAL DISMISSED AS MOOT.