IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-31132
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY KENNERSON,
Defendant-Appellant.
Appeal from the United States District Court for the
Western District of Louisiana
(CR-94-20023-01)
July 29, 1996
Before GARWOOD, WIENER and PARKER, Circuit Judges.*
PER CURIAM:
Petitioner-appellant Bobby Kennerson (Kennerson), now a
federal prisoner serving a federal sentence in the Federal Prison
Camp at El Paso, Texas, pleaded guilty in the court below, the
United States District Court for the Western District of Louisiana,
to Count I of a 16-count indictment, which charged him with
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
conspiracy to defraud the IRS in violation of 18 U.S.C. § 286. On
December 22, 1994, the court below sentenced Kennerson “to be
imprisoned for a term of thirty-three (33) months, to run
concurrently with the [state] sentence the defendant is currently
serving, with credit for time served.” The court imposed a three-
year term of supervised release. In written responses to
Kennerson’s sentencing objections, the court stated that it had
imposed a concurrent sentence after “consider[ing] the policy
statement of the . . . Sentencing Guidelines regarding the
application of Section 5G1.3(c) . . . .” Kennerson did not file a
direct appeal.
Between 1991 and 1993, Kennerson pleaded guilty to several
offenses in Louisiana state court, involving theft, issuing
worthless checks, and forgery. He was sentenced to several
concurrent terms of imprisonment, each of which ran five or six
years.
Kennerson left state prison on “good time release” on June 13,
1995, and began serving his federal sentence at the Federal Prison
Camp in El Paso, Texas, where he still remains. On September 11,
1995, while thus confined in El Paso, he filed in the district
court below the instant pro se “Motion of Defendant to Enforce
Orders in Judgment and Commitment in Exigent,” seeking his release
from prison. He contended that he had served his federal sentence
in its entirety, because the district court had “clearly stated”
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that his federal sentence was to run concurrently with his entire
state sentence and that, in receiving “credit for time served,” he
was to receive credit for all the time he spent in state custody,
including that long predating his July 16, 1994, indictment on the
federal charges. The government argued that he was entitled only
to credit for time spend in federal custody, dating from July 20,
1994.
The court denied Kennerson’s motion by order dated October 12,
1995. The court explained that when it ordered that Kennerson’s
“federal sentence run concurrently with his state sentence, this
court merely allowed [him] to begin serving his federal sentence
immediately while serving his state sentence, rather than
commencing the federal sentence upon completion of the state
sentence.”
Kennerson now appeals.
The government contends, albeit for the first time on appeal,
that the district court below lacked jurisdiction because
Kennerson’s claims address the computation and execution of his
sentence rather than the validity of his conviction or sentence.
The issue of subject matter jurisdiction may be raised for the
first time on appeal. Hensgens v. Deere & Co., 833 F.2d 1179, 1180
(5th Cir. 1987), cert. denied, 493 U.S. 851 (1989). “A claim for
time served prior to the date of a federal sentence . . . must
proceed via a petition for habeas corpus under 28 U.S.C. § 2241.”
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United States v. Mares, 868 F.2d 151, 151 (5th Cir. 1989). A
section 2241 claimant must bring his action in the district where
he is incarcerated. Id. at 151-52. If the claimant files in
another district, that court lacks jurisdiction over the petition.
Accord United States v. Gabor, 905 F.2d 76 (5th Cir. 1990); United
States v. Brown, 753 F.2d 455 (5th Cir. 1985). Accordingly, as
Kennerson was seeking credit for time served in state prison and he
is confined in El Paso and not the Western District of Louisiana,
the district court below lacked jurisdiction over his motion. See
id.
Kennerson’s contention that the government is
mischaracterizing his motion is meritless. The relief he was
seeking in that motion——that the district court below “sustain” or
“enforce” its sentence——was not available to him; the court below
had no power to grant this relief. It was without jurisdiction to
act on his motion.
Pursuant to Brown, supra, the district court’s October 12,
1995, order is vacated and the matter is remanded to the district
court with instructions to dismiss Kennerson’s motion for lack of
jurisdiction.
VACATED and REMANDED with instructions to DISMISS
for lack of jurisdiction
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