USA v. Chad Melbert

Filing

UNPUBLISHED OPINION FILED. [10-30243 Affirmed as Modified in Part, Vacated in Part and Remanded.] Judge: EGJ , Judge: EMG , Judge: CES. Mandate pull date is 01/12/2011 [10-30243]

USA v. Chad Melbert ase: 10-30243 C

Document: 00511329673 Page: 1 Date Filed: 12/22/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-30243 S u m m a r y Calendar December 22, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. C H A D E. MELBERT, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Louisiana U S D C No. 2:03-CR-20082-1

B e fo r e JOLLY, GARZA and STEWART, Circuit Judges. P E R CURIAM:* C h a d E. Melbert, federal prisoner # 11959-035, is appealing the district c o u r t's denial of his postjudgment motions challenging his conviction and s e n te n c e and the manner in which his sentence is being executed. Following his g u ilt y plea to being a felon in possession of a firearm, Melbert was sentenced to a term of imprisonment of 72 months, to run consecutively to any sentence that M e lb e r t received for violating his state probation.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 10-30243 Document: 00511329673 Page: 2 Date Filed: 12/22/2010 No. 10-30243 M e lb e r t is challenging the validity of his indictment, grand jury p r o c e e d in g s , and the imposition of the consecutive sentence. These claims arise u n d e r 28 U.S.C. § 2255. See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). However, the district court did not directly address the § 2255 claims or the time b a r issue. Further, the district court did not provide Melbert with the warnings r e q u ir e d under Castro v. United States, 540 U.S. 376, 381-83 (2003), and did not d e t e r m in e whether or not a certificate of appealability should be granted, a ju r is d ic t io n a l requirement to an appeal from the denial of a § 2255 motion. The r e c o r d reflects that the district court did not necessarily construe Melbert's filing a s a motion under § 2255. The dismissal of those claims as presented in the m o t io n s below is affirmed and the dismissal modified to be without prejudice to M e lb e r t 's presentation of them in a proper § 2255 motion. We express no opinion o r intimation concerning whether such a motion would be time barred. M e lb e r t further argues that the state court subsequently sentenced him t o 84 months of imprisonment, the sentence to run concurrently with his federal s e n te n c e and that he is seeking credit on his federal sentence for the time served o n the state sentence. Insofar as Melbert is challenging the manner in which his s e n te n c e is being executed and he is seeking credit on his federal sentence for p r io r custody, his motion was properly construed by the district court as arising u n d e r 28 U.S.C. § 2241. See United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1 9 9 2 ); United States v. Brown, 753 F.2d 455, 456 (5th Cir. 1985). T h e district court was correct that a state court's order that its sentence is to run concurrently with a federal sentence is not binding on a federal s e n te n c in g court. See Leal v. Tombone, 341 F.3d 427, 429 n.13 (5th Cir. 2003). However, it is not clear whether the state sentence served by Melbert included t h e probation revocation sentence referred to by the district court in imposing a consecutive sentence for the firearm offense given that the record reflects two s u b s e q u e n t state court convictions for attempted manslaughter and no a d ju d ic a t io n of a probation violation. If the district court's judgment does not 2

Case: 10-30243 Document: 00511329673 Page: 3 Date Filed: 12/22/2010 No. 10-30243 p r e c lu d e a federal sentence from running concurrently with a later imposed s t a t e sentence, the Bureau of Prisons (BOP) has the discretion to give a d e fe n d a n t credit for time served in state prison. Pierce v. Holder, 614 F.3d 158, 1 6 0 (5th Cir. 2010). Therefore, the case is remanded to the district court for a d e t e r m in a t io n whether Melbert is entitled to a credit on his federal sentence for t im e spent serving a state sentence. T h e Government argues for the first time on appeal that the district court d id not have jurisdiction to review the motions because Melbert has not e x h a u s t e d his administrative remedies. If a prisoner feels he has been

im p r o p e r ly refused credit for time he has served in state custody, the prisoner m u s t first exhaust his administrative remedies with the BOP before pursuing ju d ic ia l review of the BOP's computations. United States v. Dowling, 962 F.2d 3 9 0 , 393 (5th Cir.1992). A request for judicial review of a sentencing credit issue is not ripe until the BOP's makes a final decision on the request. Pierce, 614 F .3 d at 160. The district court did not address the issue of exhaustion in its o r d e r denying the motions. Therefore, it is recommended that the issue of e x h a u s t io n and the threshold issue of ripeness be addressed upon remand of the case. Melbert contends for the first time on appeal that the federal offense and h is probation violation were based on the same information and were related by t e m p o r a l proximity and that multiple punishments for the same offense-related c o n d u c t must run concurrently. Melbert also contends for the first time that the fe d e r a l government had no jurisdiction over the firearm charge because it cannot in t e r fe r e with his Second Amendment right to bear arms. This court will not c o n s id e r for the first time on appeal from the denial of habeas relief arguments t h a t were not raised by the petitioner in the district court. Carty v. Thaler, 583 F .3 d 244, 266 (5th Cir. 2009). In his reply brief, Melbert argues for the first time t h a t his Fifth Amendment right against self-incrimination was violated when he p l e a d e d guilty, he was denied the effective assistance of counsel, and his 3

Case: 10-30243 Document: 00511329673 Page: 4 Date Filed: 12/22/2010 No. 10-30243 e x c e s s iv e incarceration violated the Eighth Amendment. This court generally w ill not consider issues raised for the first time in a reply brief. United States v. R o d r ig u e z , 602 F.3d 346, 360 (5th Cir. 2010). T h e judgment of the district court is affirmed, but modified to be a d is m is s a l without prejudice with respect to any claims challenging Melbert's c o n v ic t io n or sentence that arose under § 2255. The judgment is vacated with r e s p e c t to any § 2241 claims that challenge the manner in which his sentence is b e in g executed. The case is remanded for consideration of whether Melbert is e n tit le d to any credit on his federal sentence for time served on a state sentence t h a t Melbert has served and also for a determination whether Melbert has e x h a u s t e d his claims, thus, rendering the claims ripe for judicial review. A F F I R M E D AS MODIFIED IN PART, VACATED IN PART AND REM ANDED.

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