Case: 10-10474 Document: 00511392598 Page: 1 Date Filed: 02/24/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 24, 2011
No. 10-10474
Summary Calendar Lyle W. Cayce
Clerk
STEPHEN D. HAYNES,
Petitioner-Appellant,
versus
UNITED STATES BUREAU OF PRISONS;
WARDEN CRUZ, Warden, Federal Correctional Institute Seagoville,
Respondents-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:09-CV-2046
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 10-10474
Stephen Haynes, federal prisoner # 87897-079, petitioned under 28 U.S.C.
§ 2241 to challenge the refusal of the Bureau of Prisons to give him credit for
time served on state sentences that he deems “partially concurrent” to his feder-
al sentences or, alternatively, credit for time he served in custody pursuant to
a federal writ of habeas corpus ad prosequendem. The district court dismissed
the petition. Haynes moves to proceed in forma pauperis (“IFP”) on appeal to
question the denial of IFP status and the certification that his appeal would not
be taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997);
28 U.S.C. § 1915(a)(3); F ED. R. A PP. P. 24(a)(3).
Haynes asserts that his appeal presents these issues: (1) the authority of
the sentencing court under U.S.S.G. § 5G1.3(b) to impose concurrent or partially
concurrent sentences and (2) the extent to which the sentencing court considered
his undischarged state convictions when imposing his federal sentences. He as-
serts that the sentencing court ordered a partially concurrent sentence, that the
order was valid, and that the order should be enforced by awarding him credit
against his federal sentences for the prior periods of incarceration. Alternative-
ly, he contends that he should be credited for his time in federal custody before
his federal convictions.
“A defendant shall be given credit toward the service of a term of imprison-
ment for any time he has spent in official detention prior to the date the sen-
tence commences . . . that has not been credited against another sentence.” 18
U.S.C. § 3585(b). As Haynes acknowledges, the period that he served in state
custody before being released on parole for good behavior—October 1998 to July
2008—was credited against his state sentences, and he was paroled by the state.
Because his state time has already been credited against his state sentences, it
may not—even if it were partially concurrent to the federal sentences, as Haynes
contends—be credited against his federal sentences. See id. Moreover, the rec-
ord makes plain that the sentencing court did not (as Haynes contends) intend
that any and all time that Haynes spent in state prison would be credited
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Case: 10-10474 Document: 00511392598 Page: 3 Date Filed: 02/24/2011
No. 10-10474
against his federal sentences. The sentencing court intended instead that
Haynes not serve more than a total of twenty years in both state and federal
imprisonment.
To the extent that Haynes may be understood to contend that if a non-
concurrent sentence was imposed it was erroneous under § 5G1.3(b), his claim
is a challenge to the correctness of his federal sentences. Haynes is not entitled
to proceed under § 2241 on such a claim unless he can demonstrate that relief
is warranted under the savings clause of 28 U.S.C. § 2255(e), which he has failed
to do.
Haynes has not briefed his alternative contention that he should be credit-
ed for his time in federal custody on the federal writ ad prosequendum. He has
therefore abandoned that claim. See Brinkmann v. Dallas Cnty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
To proceed IFP on appeal, a movant must first show that he is a pauper
and that he appeals in good faith, i.e., that the appeal presents a nonfrivolous
issue. Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). An appeal is frivolous
if it “lacks an arguable basis in law or fact.” Taylor v. Johnson, 257 F.3d 470,
472 (5th Cir. 2001). Haynes has not shown that his appeal presents a nonfrivo-
lous issue. Accordingly, his IFP motion is DENIED, and his appeal is
DISMISSED as frivolous. See Carson, 689 F.2d at 586; 5 TH C IR. R. 42.2.
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