                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             January 18, 2005
                         FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                             No. 04-50818
                           Summary Calendar


SERENTO CASTRO FLORES,

                            Petitioner-Appellant-Cross-Appellee,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                            Respondent-Appellee-Cross-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                       USDC No. 6:03-CV-299
                       --------------------

Before JOLLY, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Serento** Flores Castro (“Flores”), who is currently

incarcerated as a state prisoner in Texas (# 925694), has filed a

motion for a certificate of appealability (“COA”) and a motion to

proceed in forma pauperis (“IFP”) on appeal from the district

court’s denial of his habeas corpus petition, purportedly filed

pursuant to 28 U.S.C. § 2254 but construed by the district court

     *
       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this opinion should not be published and is not precedent except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.
     **
        Although this spelling of Flores’s first name appears on
the court’s docket sheet, “Serenio” also appears in the record
and appears to be the correct spelling.
                           No. 04-50818
                                -2-

as sounding under 28 U.S.C. § 2241.   Flores is serving a seven-

year state prison term for aggravated assault on a public

servant, a sentence that is running concurrently with several

other state sentences.   Three days before these state sentences

were handed down, Flores had been sentenced in federal district

court to 77 months in prison and three years of supervised

release, after having pleaded guilty to illegal re-entry, a

violation of 8 U.S.C. § 1326.   The state court’s sentencing order

stated that his state sentences were to run concurrently with the

federal sentence.

     The district court properly treated Flores’s petition as

seeking relief under 28 U.S.C. § 2241, because Flores argued

therein that the Federal Bureau of Prisons (“BOP”) was failing to

credit his federal sentence with the time he had spent in state

prison, which he maintained was required by the state judge’s

concurrent-sentencing order.    See Davis v. Fechtel, 150 F.3d 486,

487 (5th Cir. 1998) (court may liberally construe pro se

pleading, where appropriate, as habeas corpus petition).    He also

complained that federal authorities had failed to deliver him to

federal prison to serve his federal sentence.   Because Flores is

primarily attacking the execution of his federal sentence, he

claims fall under 28 U.S.C. § 2241 rather than 28 U.S.C. § 2254.

See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).

Because a prisoner does not need a COA to appeal the denial of
                             No. 04-50818
                                  -3-

relief under 28 U.S.C. § 2241, Flores’s application for a COA is

DENIED as unnecessary.

     To proceed IFP on appeal, Flores must show both that he is

economically eligible and that his appeal raises a nonfrivolous

issue.     See Jackson v. Dallas Police Dep’t, 811 F.2d 260, 261

(5th Cir. 1986).    Although Flores’s financial affidavit and

inmate trust account statement reflect that he is financially

eligible to proceed IFP, he has not established that his appeal

will raise a nonfrivolous issue.    No binding legal authority

requires the federal BOP or the United States Attorney General to

comply with a state court’s sentencing order that his federal

sentence run concurrently with his state sentences, and no

authority requires federal marshals to immediately deliver a

federal prisoner to a federal facility for the service of his

sentence.***   See Leal v. Tombone, 341 F.3d 427, 429-30 (5th Cir.

2003).     Because Flores’s appeal does not present a nonfrivolous

issue, his motion to proceed IFP on appeal is DENIED.    Flores’s

appeal is without arguable merit, see Howard v. King, 707 F.2d

215, 219-20 (5th Cir. 1983), and it is DISMISSED as frivolous.

5TH CIR. R. 42.2.




     ***
         To the extent that Flores argues that his state trial
attorneys performed ineffectively by convincing him to enter into
the plea agreement in state court, based on a promise that his
state sentences would run concurrently with his federal sentence,
that claim is raised for the first time in Flores’s COA
application and need not be considered by this court. See
Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th Cir. 1998).
                           No. 04-50818
                                -4-

     Respondent Dretke has filed a cross-appeal in which he seeks

to challenge the district court’s denial, as moot, of his motion

to be dismissed as party respondent.   Although the district court

should have required Flores to amend his petition to name the

proper federal custodian, its failure to cure what amounted to a

mere procedural defect, see West v. State of La., 478 F.2d 1026,

1029-30 (5th Cir. 1973), renders it unnecessary to consider

Dretke’s cross-appeal.   See, e.g., Singleton v. Guangzhou Ocean

Shipping Co., 79 F.3d 26, 28 (5th Cir. 1996).   Dretke’s cross-

appeal is therefore DISMISSED as moot.

     COA DENIED AS UNNECESSARY; IFP DENIED; APPEAL DISMISSED AS

FRIVOLOUS; CROSS-APPEAL DISMISSED AS MOOT.
