     Case: 10-50203 Document: 00511312196 Page: 1 Date Filed: 12/06/2010




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

                                                 FILED
                                                                          December 6, 2010
                                     No. 10-50203
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JOSEPH JAMES FALCETTA, JR.,

                                                   Petitioner-Appellant

v.

UNITED STATES OF AMERICA,

                                                   Respondent-Appellee


                    Appeal from the United States District Court
                         for the Western District of Texas
                               USDC No. 6:07-CV-58


Before DENNIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       Joseph James Falcetta, Jr., Texas prisoner # 822447, moves for leave to
proceed in forma pauperis (IFP) on appeal following the district court’s
certification that his appeal was not taken in good faith. The district court
construed Falcetta’s 28 U.S.C. §2241 habeas corpus petition as arising under 28
U.S.C. § 2255 and dismissed the constructive § 2255 motion as successive and
unauthorized.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50203 Document: 00511312196 Page: 2 Date Filed: 12/06/2010

                                  No. 10-50203

      Falcetta challenges the apparent decision of the Bureau of Prisons (BOP)
to have him serve his 191-month federal sentence consecutively to his 44-year
state sentence. We previously affirmed the district court’s denial of a previous
§ 2241 habeas corpus petition. Falcetta v. United States, 155 F. App’x 762 (5th
Cir. 2005). We construe the current petition as challenging the execution of
Falcetta’s sentence and thus arising under § 2241. See Pack v. Yussuf, 218 F.3d
448, 451 (5th Cir. 2000).
      Falcetta argues that the district court’s intent in sentencing him, as
expressed in a newspaper article, was to impose his federal sentences to run
concurrently with his state sentences; that federal law presumes the concurrent
service of federal and state sentences based on the same course of conduct; and
that the BOP is acting in violation of this court’s opinion in United States v.
Martinez, 274 F.3d 897 (5th Cir. 2001), by effectively imposing more than the
“total punishment” allowed by an upward departure from the sentencing range
in his federal case.
      Falcetta raised his contentions about the district court’s intent and the
legal presumption of concurrent sentences in his first § 2241 petition. Falcetta,
155 F. App’x at 762. The instant petition is an abuse of the writ to the extent it
raises issues already decided. See Jennings v. Menifee, 214 F. App’x 406, 407
(5th Cir. 2007).
      Falcetta raises his contention about BOP’s alleged noncompliance with
this court’s Martinez opinion for the first time on appeal. We do not consider
Falcetta’s claim. See Leverette. v. Louisville Ladder Co, 183 F.3d 339, 342 (5th
Cir. 1999); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
      Falcetta’s IFP motion is DENIED and his appeal is DISMISSED as
frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997); 5 TH C IR.
R. 42.2.




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