     Case: 10-30243 Document: 00511329673 Page: 1 Date Filed: 12/22/2010




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

                                                 FILED
                                                                         December 22, 2010
                                     No. 10-30243
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CHAD E. MELBERT,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                            USDC No. 2:03-CR-20082-1


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
       Chad E. Melbert, federal prisoner # 11959-035, is appealing the district
court’s denial of his postjudgment motions challenging his conviction and
sentence and the manner in which his sentence is being executed. Following his
guilty 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
Melbert 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                   No. 10-30243

      Melbert is challenging the validity of his indictment, grand jury
proceedings, and the imposition of the consecutive sentence. These claims arise
under 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
bar issue. Further, the district court did not provide Melbert with the warnings
required under Castro v. United States, 540 U.S. 376, 381-83 (2003), and did not
determine whether or not a certificate of appealability should be granted, a
jurisdictional requirement to an appeal from the denial of a § 2255 motion. The
record reflects that the district court did not necessarily construe Melbert’s filing
as a motion under § 2255. The dismissal of those claims as presented in the
motions below is affirmed and the dismissal modified to be without prejudice to
Melbert’s presentation of them in a proper § 2255 motion. We express no opinion
or intimation concerning whether such a motion would be time barred.
      Melbert further argues that the state court subsequently sentenced him
to 84 months of imprisonment, the sentence to run concurrently with his federal
sentence and that he is seeking credit on his federal sentence for the time served
on the state sentence. Insofar as Melbert is challenging the manner in which his
sentence is being executed and he is seeking credit on his federal sentence for
prior custody, his motion was properly construed by the district court as arising
under 28 U.S.C. § 2241. See United States v. Cleto, 956 F.2d 83, 84 (5th Cir.
1992); United States v. Brown, 753 F.2d 455, 456 (5th Cir. 1985).
      The 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
sentencing 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
the probation revocation sentence referred to by the district court in imposing
a consecutive sentence for the firearm offense given that the record reflects two
subsequent state court convictions for attempted manslaughter and no
adjudication of a probation violation. If the district court’s judgment does not

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                                   No. 10-30243

preclude a federal sentence from running concurrently with a later imposed
state sentence, the Bureau of Prisons (BOP) has the discretion to give a
defendant credit for time served in state prison. Pierce v. Holder, 614 F.3d 158,
160 (5th Cir. 2010). Therefore, the case is remanded to the district court for a
determination whether Melbert is entitled to a credit on his federal sentence for
time spent serving a state sentence.
        The Government argues for the first time on appeal that the district court
did not have jurisdiction to review the motions because Melbert has not
exhausted his administrative remedies.         If a prisoner feels he has been
improperly refused credit for time he has served in state custody, the prisoner
must first exhaust his administrative remedies with the BOP before pursuing
judicial review of the BOP’s computations. United States v. Dowling, 962 F.2d
390, 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.3d at 160. The district court did not address the issue of exhaustion in its
order denying the motions. Therefore, it is recommended that the issue of
exhaustion 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
his probation violation were based on the same information and were related by
temporal proximity and that multiple punishments for the same offense-related
conduct must run concurrently. Melbert also contends for the first time that the
federal government had no jurisdiction over the firearm charge because it cannot
interfere with his Second Amendment right to bear arms. This court will not
consider for the first time on appeal from the denial of habeas relief arguments
that were not raised by the petitioner in the district court. Carty v. Thaler, 583
F.3d 244, 266 (5th Cir. 2009). In his reply brief, Melbert argues for the first time
that his Fifth Amendment right against self-incrimination was violated when he
pleaded guilty, he was denied the effective assistance of counsel, and his

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excessive incarceration violated the Eighth Amendment. This court generally
will not consider issues raised for the first time in a reply brief. United States v.
Rodriguez, 602 F.3d 346, 360 (5th Cir. 2010).
      The judgment of the district court is affirmed, but modified to be a
dismissal without prejudice with respect to any claims challenging Melbert’s
conviction or sentence that arose under § 2255. The judgment is vacated with
respect to any § 2241 claims that challenge the manner in which his sentence is
being executed. The case is remanded for consideration of whether Melbert is
entitled to any credit on his federal sentence for time served on a state sentence
that Melbert has served and also for a determination whether Melbert has
exhausted his claims, thus, rendering the claims ripe for judicial review.
      AFFIRMED AS MODIFIED IN PART, VACATED IN PART AND
REMANDED.




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