Steven Perez v. Harley Lappin

Case: 09-50645 Document: 00511005318 Page: 1 Date Filed: 01/15/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 15, 2010
No. 09-50645
Summary Calendar Charles R. Fulbruge III
Clerk
STEVEN REYNALDO PEREZ,
Petitioner-Appellant
v.
HARLEY G. LAPPIN, Director, Federal Bureau of Prisons,
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:09-CV-409
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Steven Reynaldo Perez, currently Texas prisoner # 1514617, has filed an
application for leave to proceed in forma pauperis (IFP) on appeal following the
dismissal of his 28 U.S.C. § 2241 petition. Perez is currently serving a 60-year
state sentence for murder, and he is also subject to a consecutive two-year
sentence for revocation of his federal supervised release. In his § 2241 petition,
Perez challenged the failure of the Bureau of Prisons (BOP) to credit his federal
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50645 Document: 00511005318 Page: 2 Date Filed: 01/15/2010
No. 09-50645
sentence for the approximately 16 months he served in state jail between his
arrest and the revocation proceedings.
A movant for IFP on appeal must show that he is a pauper and that he will
present a nonfrivolous appellate issue. Carson v. Polley, 689 F.2d 562, 586 (5th
Cir. 1982). Perez is unable to make the requisite showing as to the latter
requirement. The Attorney General, through the BOP, determines what credit,
if any, will be awarded to prisoners for time spent in custody prior to the start
of their federal sentences. United States v. Wilson, 503 U.S. 329, 331-32, 334
(1992). “[A] defendant shall be given credit toward the service of a term of
imprisonment for any time he has spent in official detention prior to the date the
sentence commences . . . that has not been credited against another sentence.”
18 U.S.C. § 3585(b) (emphasis added).1 Because the state officials have credited
the pertinent time against Perez’s 60-year sentence, Perez is not entitled to
credit against his federal sentence.
Perez also asserts that the district court’s delay in holding revocation
proceedings deprived him of a fair trial and of the presumption of innocence. He
maintains that if he had been released on bond pending his state proceedings,
he would not have been convicted on the murder charge. Additionally, Perez
contends that the federal sentencing judge improperly imposed consecutive
sentences and engaged in a conspiracy with state court actors to cause his
conviction and extend his incarceration. Because such claims do not constitute
a challenge to the execution or calculation of a federal sentence, they are not
properly raised under § 2241. 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).
Perez thus has not established that he will raise a nonfrivolous appellate
issue. See Carson, 689 F.2d at 586. Accordingly, we DENY the motion to
1
The italicized portion was added after the time of the decision in Bloomgren v.
Belaski, 948 F.2d 688, 690 (10th Cir. 1991) , a Tenth Circuit opinion upon which Perez relies.
2
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No. 09-50645
proceed IFP on appeal, and we DISMISS Perez’s appeal as frivolous. See Baugh
v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997); 5 TH C IR. R. 42.2.
3