                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JAN 30 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    GERALD D. CASTOR,

                Petitioner-Appellant,

    v.                                                   No. 01-1308
                                                      (D.C. No. 00-B-229)
    UNITED STATES PAROLE                                   (D. Colo.)
    COMMISSION; AL HERRERA,
    Warden,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , KELLY , and BRISCOE , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Petitioner Gerald D. Castor, a federal prisoner proceeding pro se, appeals

from the district court’s order adopting a magistrate judge’s recommendation to

deny his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241.

He also seeks to proceed on appeal in forma pauperis. We grant the petition to

proceed on appeal in forma pauperis, and we affirm.   1




                                     Background

      Petitioner was charged in the federal district court for the Southern District

of Indiana with nine counts in a federal indictment based on a plot to obtain the

marketing rights for a non-tobacco herbal chew. He was ultimately found guilty

on six of the counts charged. Count Nine (possession of a firearm by a felon) was

severed and tried first. On October 30, 1989, petitioner was sentenced to eighteen

months’ imprisonment and given credit for pretrial time served. The next trial

resulted in guilty verdicts on Counts One, Two and Three (conspiracy to commit

extortion, attempted extortion in violation of the Hobbs Act, and traveling in

interstate commerce to attempt extortion in violation of the Travel Act), and

petitioner was sentenced on January 11, 1990, to seventeen years’ imprisonment.

He then entered guilty pleas to Counts Four and Six (attempted extortion and



1
       A certificate of appealability is not required for a federal prisoner to
appeal a final order in a proceeding under 28 U.S.C. § 2241.     Hunnicutt v. Hawk ,
229 F.3d 997, 998 (10th Cir. 2000).

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interstate travel to commit an unlawful act: attempted extortion) and the

remaining two counts were dismissed. On March 1, 1990, petitioner was

sentenced on Counts Four and Six to twenty-five years’ imprisonment, to run

concurrently with the sentence imposed on Counts One, Two and Three.

       On appeal, petitioner challenges the execution of his sentence, claiming his

sentence was incorrectly calculated because the sentence on Count Nine was

deemed to run consecutively to the other sentences, rather than concurrently.

He also claims he is entitled to relief under         Apprendi v. New Jersey , 530 U.S. 466

(2000), because the grand jury that issued the indictment against him was not

presented with all of the sentencing factors, which divested the trial court of

jurisdiction. To the extent he raises on appeal claims that he did not receive

notice that his sentence would be enhanced and that his good- and earned-time

credits were not calculated properly, these claims were not included in his habeas

petition. Therefore, they will not be considered for the first time on appeal.

Walker v. Mather (In re Walker)     , 959 F.2d 894, 896 (10th Cir. 1992).


                                          Analysis

       The district court’s denial of the § 2241 petition is reviewed de novo.

Hunnicutt v. Hawk , 229 F.3d 997, 1000 (10th Cir. 2000).            Because plaintiff

is representing himself on appeal, his pleadings will be liberally construed.

Haines v. Kerner, 404 U.S. 519, 520 (1972).

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       Petitioner’s claim that his first sentence should run concurrently to the

other two is governed by 18 U.S.C. § 3584(a), which provides, under certain

conditions, that multiple terms of imprisonment     may run concurrently or

consecutively. Where, as here, the terms of imprisonment are imposed at

different times, however, they “run consecutively unless the court orders that the

terms are to run concurrently.”    Id. Petitioner does not claim that his prison term

for Count Nine was imposed at the same time as the prison term for Counts One,

Two and Three, or that the judge who sentenced him on the later convictions

ordered that either sentence was to run concurrently to the sentence on Count

Nine. Rather, he argues that he had not completed     service of his sentence on

Count Nine when the next sentence was imposed and, therefore, § 3584(a)

requires concurrent terms.    See id. (“Multiple terms of imprisonment   imposed

at the same time run concurrently unless . . . .”) (emphasis added).

       The plain language of the statute requires that petitioner’s sentence on

Count Nine run consecutively to his other sentences because the sentencing court

did not order concurrent sentences. His reliance on the statute’s language

pertaining to “attempt” crimes is not applicable.   See § 3584(a) (“the terms may

not run consecutively for an attempt and for another offense that was the sole

objective of the attempt”). Accordingly, petitioner is not entitled to relief on

this claim.


                                            -4-
       Petitioner’s claim that the rule announced in        Apprendi divested the trial

court of jurisdiction due to a defective indictment, however novel, attacks the

legality of his detention, rather than the execution of his sentence. Therefore,

it must be filed pursuant to 28 U.S.C. § 2255 and cannot be maintained in this

action brought under § 2241.      Haugh v. Booker , 210 F.3d 1147, 1149 (10th Cir.

2000). We cannot construe this petition as a § 2255 motion because it was not

filed in the district that imposed petitioner’s sentence.      See United States v.

Burch , 169 F.3d 666, 668 (10th Cir. 1999) (§ 2241 petition construed as motion

filed under § 2255). Consequently, petitioner cannot receive relief from this court

under Apprendi . We express no opinion on whether the sentencing court would

consider this claim.

       Petitioner’s motion for appointment of counsel is denied. His three

motions filed pursuant to Fed. R. App. P. 8(d) and Fed. R. Crim. P. 201(d) & (e)

[sic] are denied. His request to proceed on appeal without prepayment of costs

and fees is granted. The judgment of the United States District Court for the

District of Colorado is AFFIRMED. The mandate shall issue forthwith.


                                                            Entered for the Court



                                                            David M. Ebel
                                                            Circuit Judge


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