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

                                                FILED
                                                                  May 21, 2009
                                No. 08-30792
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

WALTER J WATERS, JR

                                           Petitioner-Appellant

v.

UNITED STATES OF AMERICA

                                           Respondent-Appellee


                 Appeal from the United States District Court
                    for the Western District of Louisiana
                           USDC No. 3:08-CV-462


Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
      In September 2006 Walter J. Waters, federal prisoner # 33795-177, was
convicted in the Western District of Louisiana of conspiracy to possess with the
intent to distribute cocaine and he was sentenced to 70 months of imprisonment.
In November 2006 Waters was convicted in Louisiana state court of drug
possession and sentenced to serve five years in prison. The state court ordered
that his state sentence run consecutively to his federal sentence. Waters appeals



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-30792

the denial of his 28 U.S.C. § 2241 petition, which the district court dismissed
after determining that Waters’ failure to establish that he was in custody in
violation of the Constitution and laws of the United States made his § 2241
petition subject to dismissal for failure to state a claim upon which relief could
be granted.
      On appeal, Waters challenges the consecutive nature of his state and
federal sentences. He argues, inter alia, that the Federal Bureau of Prisons
(BOP) lacked authority to suspend his federal sentence and remand him into
state custody for prosecution. He asserts that he should have been allowed to
complete his federal sentence before he was transferred to state custody. He
requests that his federal sentence be credited with the time that he served in
state custody.
      Habeas relief cannot be had absent the deprivation of some right secured
to the petitioner by the United States Constitution or the laws of the United
States. Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995). The district court
correctly determined that Waters’ claim that the BOP lacked discretion to
determine that he would serve all, or part of, his federal sentence in the
Louisiana state prison system did not implicate a constitutionally protected
right. See Olim v. Wakinekona, 461 U.S. 238, 246-47 (1983). Also, although
Waters’ federal judgment of conviction is silent regarding the state prosecution,
the district court in the instant proceeding correctly relied upon 18 U.S.C.
§ 3584(a) and Free v. Miles, 333 F.3d 550, 553 (2003), to determine that the
federal sentencing court’s silence on the issue indicated that the terms were to
run consecutively. Moreover, Waters does not argue that the administration of
his consecutive sentences will result in an artificial extension of the duration of
his confinement under the consecutive federal and state sentences. Waters thus
is not entitled to credit on his federal sentence for time served in state custody.
See Free, 333 F.3d at 554-55.



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                           No. 08-30792

    For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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