     Case: 09-10651     Document: 00511062823          Page: 1    Date Filed: 03/25/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 25, 2010
                                     No. 09-10651
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

STEVE RAY HICKMAN,

                                                   Petitioner - Appellant

v.

RODNEY CHANDLER, Warden,

                                                   Respondent - Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:08-CV-139


Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
        Steve Ray Hickman, federal prisoner # 23249-077, appeals the district
court’s denial of his 28 U.S.C. § 2241 petition, wherein he argued that the
sentence imposed following his guilty plea conviction of distributing less than
five grams of crack cocaine within 1,000 feet of an elementary school should have
been run concurrently with a previously imposed state sentence. Hickman
argues on appeal that the district court erred by determining that his claim that
his federal sentence was intended to run concurrently with his state sentence

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-10651    Document: 00511062823 Page: 2         Date Filed: 03/25/2010
                                 No. 09-10651

was not cognizable under § 2241 or pursuant to the “savings clause” of 28 U.S.C.
§ 2255 and abused its discretion by failing to appoint counsel or hold an
evidentiary hearing on his claim. He contends further that the district court
abused its discretion by determining that he was not entitled to relief on his
claim that the Bureau of Prisons (BOP) erred by refusing to designate nunc pro
tunc his state facility as the facility where he would serve his federal sentence.
      Because Hickman is proceeding under § 2241, he is not required to obtain
a certificate of appealability to pursue his appeal. Jeffers v. Chandler, 253 F.3d
827, 830 (5th Cir. 2001). In reviewing the denial of habeas relief, the district
court’s factual findings are reviewed for clear error, and its legal conclusions are
reviewed de novo. Id.
      Hickman’s claims relating to promises made to him before sentencing or
to his understanding of the plea agreement with regard to whether his federal
sentence would run concurrently with or consecutively to his state sentence were
challenges to the manner in which the sentence was determined. See Cox v.
Warden, Fed. Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). As such, the
district court did not err by determining that those claims were not cognizable
in a § 2241 proceeding and were properly brought via a § 2255 motion. See id.
      Hickman also has not shown that the district court erred by determining
that his claims could not be brought under § 2241 pursuant to the “savings
clause” of § 2255.    Hickman’s claims are not being brought pursuant to a
retroactive Supreme Court decision that establishes that he may have been
convicted of a nonexistent offense, and Hickman has not shown that his
arguments were foreclosed by precedent at the time his original § 2255 motion
was due.    See Christopher v. Miles, 342 F.3d 378, 381-82 (5th Cir. 2003).
Therefore, he cannot show that the remedy available under § 2255 is inadequate
or ineffective to test the legality of his detention. Id. The fact that Hickman’s
claims are now time barred does not render the remedy available under § 2255
inadequate or ineffective. Pack v. Yusuff, 218 F.3d 448, 452 (2000). Because

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                                 No. 09-10651

Hickman is unable to obtain relief on those claims, the district court did not
abuse its discretion by refusing to hold an evidentiary hearing or appoint
counsel. Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir. 1989); Schwander v.
Blackburn, 750 F.2d 494, 502 (5th Cir. 1985).
      The BOP has wide discretion to designate a state correctional facility as
the location in which an inmate can serve a federal sentence.           18 U.S.C.
§ 3621(b). The BOP elected not to exercise this discretion after reviewing the
record in Hickman’s case because there was no evidence therein that suggested
that a concurrent sentence was agreed to or intended. See Free v. Miles, 333
F.3d 550, 553 (5th Cir. 2003); 18 U.S.C. § 3584. Because the BOP did not abuse
its discretion, the district court did not err by denying Hickman’s § 2241 petition
as to this claim. Jeffers, 253 F.3d at 830. Accordingly, the judgment of the
district court is AFFIRMED.
      Incorporated in Hickman’s brief is a motion for appointment of appellate
counsel. Hickman has adequately briefed the issues on appeal. Therefore, his
motion is DENIED.




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