Case: 10-60297     Document: 00511249601          Page: 1    Date Filed: 09/30/2010




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

                                                 FILED
                                                                        September 30, 2010
                                     No. 10-60297
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JOHNNY HICKS,

                                                   Petitioner-Appellant

v.

UNITED STATES,

                                                   Respondent-Appellee


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                               USDC No. 4:10-CV-41


Before D EMOSS, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
        Johnny Hicks, Mississippi prisoner # 30841, appeals the dismissal,
without prejudice, of his 28 U.S.C. § 2241-denominated petition for lack of
jurisdiction.    Hicks originally filed his petition in the Northern District of
Mississippi, where he was incarcerated, but that court transferred the action to
the Southern District of Mississippi, in which court Hicks had been convicted of
being a felon in possession of a firearm. The Northern District based its transfer



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-60297    Document: 00511249601 Page: 2        Date Filed: 09/30/2010
                                 No. 10-60297

on a determination that Hicks was challenging his federal sentence and that he
was seeking relief under 28 U.S.C. § 2255.
       The Southern District determined that Hicks was challenging the manner
in which his sentence was being executed and that Hicks’s claims must be raised
in a § 2241 petition. It determined that it lacked jurisdiction over Hicks’s § 2241
petition because Hicks was not incarcerated within the Southern District.
       Although Hicks is appealing the Southern District’s order, he does not
disagree with that court’s analysis. He argues that the claims raised in his
§ 2241 petition concern the execution of his sentence and that the Northern
District misapprehended the nature of his claims when it construed his filing as
seeking relief under § 2255 and transferred his § 2241 petition to the Southern
District.
       Section 2255 provides the main vehicle to raise a collateral challenge to a
federal sentence. Tolliver v. Dobre, 

, 877 (5th Cir. 2000). Section
2255 relief is the remedy for “errors that occurred at or prior to sentencing.” Cox
v. Warden, Fed. Detention Ctr., 

, 1113 (5th Cir. 1990) (internal
quotation marks and citation omitted). In contrast, § 2241 is used to raise a
challenge to “the manner in which a sentence is executed.” 

.
       Hicks is correct that his § 2241-denominated petition did not raise errors
that occurred at or prior to sentencing. His claims concern events that occurred
after he was convicted and sentenced on federal charges, specifically his release
from federal custody to state custody and his continuation in state custody
following his conviction on state charges. A § 2241 petition was the proper
vehicle for Hicks’s claims. See 

.
       “To entertain a § 2241 habeas petition, the district court must, upon the
filing of the petition, have jurisdiction over the prisoner or his custodian.”
United States v. Brown, 

, 456 (5th Cir. 1985). Because Hicks was
incarcerated in a prison facility in the Northern District when he filed his § 2241

                                        2
   Case: 10-60297    Document: 00511249601 Page: 3        Date Filed: 09/30/2010
                                 No. 10-60297

petition, the Southern District did not err in dismissing the petition for lack of
jurisdiction. See 

order of the Southern District is affirmed.
This Court notes that the dismissal by the Southern District was without
prejudice, thereby permitting Hicks to re-file.
      Hicks has also petitioned this Court to issue a writ of prohibition. In his
petition, Hicks seeks credit against his federal sentence for this time he has
served in state custody. He also requests a transfer to federal custody.
      “The Writs of Mandamus and Prohibition are granted sparingly.” In re
Estelle, 

, 483 (5th Cir. 1975) (internal quotation and citation
omitted). Such writs, available under the All-Writs Act, 28 U.S.C. § 1651(a), are
reserved for extraordinary causes and are issued only when the right to relief is
clear and indisputable. 

who has received credit on his state sentence for his time in
state custody is not entitled to additional credit on his federal sentence for that
same period. Leal v. Tombone, 

, 429–30 (5th Cir. 2003). Further,
“the federal government and a state are perfectly free to make any agreement
between themselves concerning which of their sentences will be served first.”
Causey v. Civiletti, 

, 694 (5th Cir. 1980). Because Hicks has not
shown that he has a clear right to credit against his federal sentence, or for any
other relief, based on his release from federal custody to state custody and his
continuation in state custody following his conviction on state charges, his
petition for a writ of prohibition is denied.     See 

.
      AFFIRMED; PETITION FOR WRIT OF PROHIBITION DENIED.




                                        3