Joseph Falcetta, Jr. v. United States

403 F. App'x 882

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 6, 2010
• Docket: 10-50203
• Status: Unpublished

Opinion

PER CURIAM: *

Joseph James Falcetta, Jr., Texas prisoner # 822447, moves for leave to proceed in forma pauperis (IFP) on appeal following the district court’s certification that his appeal was not taken in good faith. The district court construed Falcetta’s 28 U.S.C. § 2241 habeas corpus petition as arising under 28 U.S.C. § 2255 and dismissed the constructive § 2255 motion as successive and unauthorized.

Falcetta challenges the apparent decision of the Bureau of Prisons (BOP) to have him serve his 191-month federal sentence consecutively to his 44-year state sentence. We previously affirmed the district court’s denial of a previous § 2241 habeas corpus petition. Falcetta v. United States, 155 Fed.Appx. 762 (5th Cir.2005). We construe the current petition as challenging the execution of Falcetta’s sentence and thus arising under § 2241. See Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir.2000).

Falcetta argues that the district court’s intent in sentencing him, as expressed in a newspaper article, was to impose his federal sentences to run concurrently with his state sentences; that federal law presumes the concurrent service of federal and state sentences based on the same course of conduct; and that the BOP is acting in violation of this court’s opinion in United States v. Martinez, 274 F.3d 897 (5th Cir.2001), by effectively imposing more than the “total punishment” allowed by an upward departure from the sentencing range in his federal case.

Falcetta raised his contentions about the district court’s intent and the legal presumption of concurrent sentences in his first § 2241 petition. Falcetta, 155 Fed. Appx. at 762. The instant petition is an abuse of the writ to the extent it raises issues already decided. See Jennings v. Menifee, 214 Fed.Appx. 406, 407 (5th Cir. 2007).

Falcetta raises his contention about BOP’s alleged noncompliance with this court’s Martinez opinion for the first time on appeal. We do not consider Falcetta’s claim. See Leverette. v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.1999); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.1991).

Falcetta’s IFP motion is DENIED and his appeal is DISMISSED as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 n. 24 (5th Cir.1997); 5th Cir. R. 42.2.

* 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.