Trejo v. Warden

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 8, 2007
Charles R. Fulbruge III
Clerk
No. 05-51686
Summary Calendar
LUIS TREJO,
Petitioner-Appellant,
versus
DENNIS WARDEN, FCI, LA TUNA, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CV-296
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Luis Trejo, federal prisoner # 96613-080, seeks permission
to proceed in forma pauperis (IFP) to appeal the denial of his
28 U.S.C. § 2241 petition. In his petition, Trejo argued that
the Bureau of Prisons (BOP) erred in not giving him credit on his
federal sentence for time spent in state custody and also
improperly determined that his federal sentence should run
consecutively to his state sentence.
In filing the IFP motion, Trejo is challenging the district
court’s certification decision that his appeal was not taken in
*
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this opinion should not be published and is not precedent except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. 05-51686
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good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997); FED. R. APP. P. 24(a)(5). When the district court
certifies that an appeal is not taken in good faith, it is
required under Rule 24(a) to “set forth in writing the reasons
for its certification.” Baugh, 117 F.3d at 202; Rule 24(a)(3).
This court’s inquiry into an appellant’s good faith “is limited
to whether the appeal involves ‘legal points arguable on their
merits (and therefore nonfrivolous).’” Howard v. King, 707 F.2d
215, 220 (5th Cir. 1983).
The district court failed to comply with Baugh since it
neither provided reasons for certifying that Trejo’s appeal was
not taken in good faith, nor incorporated its decision on the
merits of Trejo’s petition. See Baugh, 117 F.3d at 202; Rule
24(a)(3). Nevertheless, this court may dismiss the case sua
sponte pursuant to 5TH CIR. R. 42.2 if it is apparent that the
appeal lacks merit. Baugh, 117 F.3d at 202 & n.24.
Trejo is not entitled to credit on his federal sentence for
the time he was in federal custody pursuant to a writ of habeas
corpus prosequendum. See United States v. Brown, 753 F.2d 455,
456 (5th Cir. 1985). Moreover, Trejo is not entitled to credit
on his federal sentence because the time at issue was credited
toward his state sentence. See 18 U.S.C. § 3585(b).
Additionally, the district court did not err by concluding that
the federal sentence was to run consecutively to the state
sentence. See 18 U.S.C. § 3584(a); Free v. Miles, 333 F.3d 550,
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553 (5th Cir. 2003); United States v. Brown, 920 F.2d 1212, 1217
(5th Cir. 1991).
Trejo has failed to identify a nonfrivolous issue for
appeal, and he has not shown that the district court erred in
certifying that an appeal would not be taken in good faith.
Accordingly, Trejo’s motion to proceed IFP is denied, and his
appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202
n.24; 5TH CIR. R. 42.2. Trejo is warned that the submission of
further frivolous pleadings, to this court or any other court
subject to this court’s jurisdiction, may subject him to
sanctions.
IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION
WARNING ISSUED.