                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 8, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-51686
                         Summary Calendar


LUIS TREJO,

                                    Petitioner-Appellant,

versus

DENNIS WARDEN, FCI, LA TUNA, Warden,

                                    Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                       USDC No. 3:04-CV-296
                       --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Luis Trejo, federal prisoner # 96613-080, seeks permission

to proceed in forma pauperis (IFP) to appeal the denial of his

28 U.S.C. § 2241 petition.   In his petition, Trejo argued that

the Bureau of Prisons (BOP) erred in not giving him credit on his

federal sentence for time spent in state custody and also

improperly determined that his federal sentence should run

consecutively to his state sentence.

     In filing the IFP motion, Trejo is challenging the district

court’s certification decision that his appeal was not taken in

     *
       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this opinion should not be published and is not precedent except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.
                             No. 05-51686
                                  -2-

good faith.   See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.

1997); FED. R. APP. P. 24(a)(5).    When the district court

certifies that an appeal is not taken in good faith, it is

required under Rule 24(a) to “set forth in writing the reasons

for its certification.”     Baugh, 117 F.3d at 202; Rule 24(a)(3).

This court’s inquiry into an appellant’s good faith “is limited

to whether the appeal involves ‘legal points arguable on their

merits (and therefore nonfrivolous).’”      Howard v. King, 707 F.2d

215, 220 (5th Cir. 1983).

     The district court failed to comply with Baugh since it

neither provided reasons for certifying that Trejo’s appeal was

not taken in good faith, nor incorporated its decision on the

merits of Trejo’s petition.     See Baugh, 117 F.3d at 202; Rule

24(a)(3).   Nevertheless, this court may dismiss the case sua

sponte pursuant to 5TH CIR. R. 42.2 if it is apparent that the

appeal lacks merit.    Baugh, 117 F.3d at 202 & n.24.

     Trejo is not entitled to credit on his federal sentence for

the time he was in federal custody pursuant to a writ of habeas

corpus prosequendum.    See United States v. Brown, 753 F.2d 455,

456 (5th Cir. 1985).   Moreover, Trejo is not entitled to credit

on his federal sentence because the time at issue was credited

toward his state sentence.     See 18 U.S.C. § 3585(b).

Additionally, the district court did not err by concluding that

the federal sentence was to run consecutively to the state

sentence.   See 18 U.S.C. § 3584(a); Free v. Miles, 333 F.3d 550,
                            No. 05-51686
                                 -3-

553 (5th Cir. 2003); United States v. Brown, 920 F.2d 1212, 1217

(5th Cir. 1991).

     Trejo has failed to identify a nonfrivolous issue for

appeal, and he has not shown that the district court erred in

certifying that an appeal would not be taken in good faith.

Accordingly, Trejo’s motion to proceed IFP is denied, and his

appeal is dismissed as frivolous.   See Baugh, 117 F.3d at 202

n.24; 5TH CIR. R. 42.2.   Trejo is warned that the submission of

further frivolous pleadings, to this court or any other court

subject to this court’s jurisdiction, may subject him to

sanctions.

     IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION

WARNING ISSUED.
