                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             January 5, 2006
                                  TENTH CIRCUIT                           Elisabeth A. Shumaker
                                                                              Clerk of Court

 FRED ROBERT MARTINEZ,

               Petitioner-Appellant,                        No. 05-2212
          v.                                             (D. New Mexico)
 UNITED STATES OF AMERICA,                       (D.C. No. CIV-04-678 RB/ACT)

               Respondent-Appellee.


                            ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges.


      After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See F ED . R. A PP . P. 34(a); 10 TH C IR . R. 34.1(G).

      Fred Robert Martinez, a federal prisoner proceeding pro se, appeals the

district court’s dismissal with prejudice of his application for a writ of habeas

corpus pursuant to 28 U.S.C. § 2241. Because Mr. Martinez is a federal prisoner

and this proceeding arises under § 2241, Mr. Martinez does not need a certificate


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
of appealability. See McIntosh v. United States Parole Comm’n, 115 F.3d 809,

810 n.1 (10th Cir. 1997). We review the district court’s decision de novo, see

Patterson v. Knowles, 162 F.3d 574, 575 (10th Cir. 1998), and we affirm for

substantially the same reasons set forth in the magistrate judge’s recommended

disposition and the district court’s order.

                                 I. BACKGROUND

      On October 20, 1987, Mr. Martinez and his co-perpetrator, Larry James

Mireles, robbed a bank with handguns and took approximately $2,834. Mr.

Martinez was arrested and charged with first-degree armed robbery. At the time

of the robbery, Mr. Martinez was on state parole. On October 26, 1987, the

Corrections Department of New Mexico issued a warrant for his arrest for

violation of the terms of his parole. On December 10, 1987, a federal grand jury

indicted Mr. Martinez for one count of bank robbery, in violation of 18 U.S.C. §

2113(a) and (d).

      Mr. Martinez remained in a Bernalillo County jail until April 25, 1989.

While he was in the county jail, a federal district judge on three occasions issued

a writ of habeas corpus ad prosequendum for Mr. Martinez to appear in federal

court: (1) for his arraignment on March 24, 1988; (2) for his entry of a guilty plea

on May 3, 1988; and (3) for his federal sentence of 18 years’ imprisonment on

July 1, 1988.


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      From April 25, 1989 until October 1, 1993, Mr. Martinez served a sentence

for violation of his state parole. On October 1, 1993, he was transported to a

federal prison in Leavenworth, Kansas, to begin serving his federal sentence.

Through an administrative process, Mr. Martinez received credit toward his

federal sentence for time in the Bernalillo County jail between his federal

arraignment (March 24, 1988) and the date he began serving the state parole

violation (April 25, 1989).

      On January 20, 1995, Mr. Martinez filed a habeas petition under 28 U.S.C.

§ 2255 (the “First Application”). He sought credit for the time he spent in state

custody–from April 25, 1989 until October 1, 1993–against his federal term of

imprisonment. In December 1995, the district court dismissed his First

Application with prejudice.

      In June 2004, Mr. Martinez filed an application for writ of habeas corpus

pursuant to 28 U.S.C. § 2241 (the “Second Application”), requesting credit for the

time he spent in state custody. The magistrate judge found that the “§ 2241

application is identical to the First Application. Furthermore, to the extent that

this Second Application raises any new claims, these claims are predicated on the

same factual basis as the First Application and Petitioner has failed to show cause

or a fundamental miscarriage of justice.” Rec. doc. 28, at 5 (Magistrate Judge’s

Proposed Findings and Recommended Disposition, filed May 13, 2005). The


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district court adopted the recommended disposition and dismissed with prejudice

Mr. Martinez’s § 2241 application. Rec. doc. 29 (Order, filed June 28, 2005).

The district court granted Mr. Martinez’s motion for leave to proceed on appeal

without prepayment of fees.

                                 II. DISCUSSION

      “No circuit . . . shall be required to entertain an application for a writ of

habeas corpus . . . if it appears that the legality of such detention has been

determined by a judge or court of the United States on a prior application for a

writ of habeas corpus . . . .” 28 U.S.C. § 2244(a). As the magistrate judge noted,

Mr. Martinez similarly sought credit for his time spent in state custody in his First

Application in 1995. The district court addressed and rejected his arguments in

1995, concluding that a federal sentence begins on the date a prisoner is received

at the federal penitentiary, see 18 U.S.C. § 3585(a), and state and federal

authorities have discretion as to the order of service of state and federal

sentences. Rec. doc. 18, ex. 15, at 2 (Magistrate Judge’s Proposed Findings and

Recommended Decision, filed Nov. 22, 1995). We agree with the magistrate

judge and district court that Mr. Martinez’s claims under his Second Application

are predicated on the same factual basis as the First Application, and we therefore

are not required to consider the Second Application on appeal. See 28 U.S.C. §

2244(a).


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                             III. CONCLUSION

      Accordingly, we AFFIRM the district court’s dismissal with prejudice of

Mr. Martinez’s § 2241 habeas application.



                                    Entered for the Court,



                                    Robert H. Henry
                                    Circuit Judge




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