     Case: 10-40490 Document: 00511452021 Page: 1 Date Filed: 04/20/2011




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

                                                 FILED
                                                                            April 20, 2011
                                     No. 10-40490
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

RICARDO DAVILA MARTINEZ,

                                                   Petitioner-Appellant

v.

WARDEN JOSLIN; FEDERAL PRISON CAMP, Three Rivers Texas,

                                                   Respondents-Appellees


                    Appeal from the United States District Court
                         for the Southern District of Texas
                               USDC No. 2:09-CV-345


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Ricardo Davila Martinez, federal prisoner # 10272-273, has appealed the
magistrate judge’s order granting the respondents’ motion for summary
judgment and dismissing Martinez’s petition for a writ of habeas corpus.
Martinez’s habeas petition, filed under 28 U.S.C. § 2241, contended that the
Bureau of Prisons had failed to credit him for time spent in state custody while
awaiting federal sentencing. Section 2241 habeas petitions are used to attack



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40490 Document: 00511452021 Page: 2 Date Filed: 04/20/2011

                                  No. 10-40490

the manner in which a sentence is carried out or calculated by prison
authorities. See Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000).
      On appeal, Martinez does not contend that his sentence has been
calculated unlawfully, and his previous contentions in this regard are deemed
abandoned. See Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 653
(5th Cir. 2004).   Instead, Martinez asserts that his trial counsel rendered
ineffective assistance in advising him during the plea negotiations in his
criminal case, and that the magistrate judge erred in failing to consider
Martinez’s ineffective-assistance-of-counsel claim on the merits under the
savings clause of 28 U.S.C. § 2255(e).
       Section 2255(e) permits a district court to entertain a habeas corpus
petition from a prisoner “authorized to apply for relief by [a Section 2255]
motion” only if it appears “that the remedy by motion is inadequate or ineffective
to test the legality of his detention.” Id. The burden to show the inadequacy of
a Section 2255 motion lies with the petitioner. See Reyes-Requena v. United
States, 243 F.3d 893, 901 (5th Cir. 2001).
      Martinez has not shown that a Section 2255 motion would be inadequate
or ineffective to address his ineffective-assistance-of-counsel claim. See Pack,
218 F.3d at 452. Martinez raised a similar ineffective-assistance claim in his
Section 2255 motion in the United States District Court for the District of South
Dakota, which was rejected by that court on the merits. See Martinez v. United
States, No. 5:09-CV-5027-KES (D.S.D. July 16, 2009) (unpublished); see also
Martinez v. United States, No. 5:09-CV-5027-KES (D.S.D. Aug. 11, 2009)
(unpublished order dismissing case). Neither a prior denial of a Section 2255
motion nor a procedural bar to such filing suffices to show that Section 2255
relief is inadequate here.   See Pack, 218 F.3d at 452.      Moreover, we lack
jurisdiction to consider Martinez’s arguments challenging the conclusions of the
district court in the South Dakota case.



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    Case: 10-40490 Document: 00511452021 Page: 3 Date Filed: 04/20/2011

                                  No. 10-40490

      Martinez argues for the first time on appeal that the sentencing court erred
in failing to credit him for time served in state custody, contrary to Section
5G1.3(b) of the Sentencing Guidelines. Because this contention involves a claim
of error that occurred at sentencing, it is not cognizable in a Section 2241
proceeding. See Pack, 218 F.3d at 451.
      Because the appeal is without arguable merit, it is DISMISSED AS
FRIVOLOUS. See 5 TH C IR. R. 42.2. Martinez is CAUTIONED that the filing of
frivolous appeals in the future will invite the imposition of a sanction.




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