Joseph Falcetta, Jr. v. USA

Filing

UNPUBLISHED OPINION ORDER FILED. [10-50203 Dismissed as Frivolous] Judge: JLD , Judge: EBC , Judge: JWE Mandate pull date is 01/27/2011; denying motion to proceed IFP filed by Appellant Mr. Joseph James Falcetta, Jr. [6534548-2] [10-50203]

Joseph Falcetta, Jr. Case: 10-50203 v. USA

Document: 00511312196 Page: 1 Date Filed: 12/06/2010

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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 . 10-50203 S u m m a r y Calendar December 6, 2010 Lyle W. Cayce Clerk

J O S E P H JAMES FALCETTA, JR., P e titio n e r-A p p e lla n t v. U N IT E D STATES OF AMERICA, R e s p o n d e n t -A p p e lle e

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 6:07-CV-58

B e fo r e DENNIS, CLEMENT, and ELROD, Circuit Judges. PER CURIAM:* J o s e p h James Falcetta, Jr., Texas prisoner # 822447, moves for leave to p r o c e e d in forma pauperis (IFP) on appeal following the district court's c e r t ific a t io n that his appeal was not taken in good faith. The district court c o n s t r u e d 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 u n a u th o riz e d .

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50203 Document: 00511312196 Page: 2 Date Filed: 12/06/2010 No. 10-50203 F a lc e t t a challenges the apparent decision of the Bureau of Prisons (BOP) t o have him serve his 191-month federal sentence consecutively to his 44-year s t a t e sentence. We previously affirmed the district court's denial of a previous § 2241 habeas corpus petition. Falcetta v. United States, 155 F. App'x 762 (5th C ir . 2005). We construe the current petition as challenging the execution of F a lc e t t a 's sentence and thus arising under § 2241. See Pack v. Yussuf, 218 F.3d 4 4 8 , 451 (5th Cir. 2000). F a lc e t t a argues that the district court's intent in sentencing him, as e x p r e s s e d in a newspaper article, was to impose his federal sentences to run c o n c u r r e n t ly with his state sentences; that federal law presumes the concurrent s e r v ic e of federal and state sentences based on the same course of conduct; and t h a t the BOP is acting in violation of this court's opinion in United States v. M a r tin e z , 274 F.3d 897 (5th Cir. 2001), by effectively imposing more than the " t o t a l punishment" allowed by an upward departure from the sentencing range in his federal case. F a lc e t t a raised his contentions about the district court's intent and the le g a l presumption of concurrent sentences in his first § 2241 petition. Falcetta, 1 5 5 F. App'x at 762. The instant petition is an abuse of the writ to the extent it r a is e s issues already decided. See Jennings v. Menifee, 214 F. App'x 406, 407 (5 t h Cir. 2007). F a lc e t t a raises his contention about BOP's alleged noncompliance with t h is court's Martinez opinion for the first time on appeal. We do not consider F a lc e t t a 's claim. See Leverette. v. Louisville Ladder Co, 183 F.3d 339, 342 (5th C ir . 1999); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). F a lc e t t a 's IFP motion is DENIED and his appeal is DISMISSED as fr iv o lo u s . See Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997); 5TH CIR. R . 42.2.

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