UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JOE LENZIE TURNER, Petitioner - Appellant,

v. RICHARD GRANT, Respondent - Appellee. No. 21-6151 (D.C. No. 5:21- CV-00463-R) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MORITZ , BRISCOE , and CARSON , Circuit Judges.

________________ _________________ Petitioner Joe Lenzie Turner, a federal prisoner proceeding pro se, appeals the district court’s dismissal of his petition for a writ of ha beas corpus under 28 U.S.C. § 2241 and seeks leave to proceed in forma pauperis. 1 We affirm the dismissal of his petition and deny his motion to proceed in forma pauperis.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 Because Turner is a fede ral prisoner proceeding unde r § 2241, a certificate of appealability is not a prer equisite to his appeal. See McIntosh v. Un ited States Parole Comm’n , 115 F.3d 809, 810 n. 1 (10th Cir. 1997). FILED United States Court of Appeals Tenth Circuit 

### April 29, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-6151 Document: 010110677612 Date Filed: 04/29/2022 Page: 12 I Turner was initially sent enced in federal court on November 22, 2005, to 63 months’ imprisonment for distribution of fi ve grams or more of cocaine base. United
States v. Turner , Case No. 1:05-cr-00095-JAR (E.D. Mo.) (“ Turner I ”). On December 20, 2005, he was released on bond, erroneously, to Missour i officials. On June 8, 2006, a Missouri state court senten ced him to two consecu tive five-year terms of imprisonment, to be served concurren tly with his federal sentence. He was paroled on a federal detainer and returned to federal cust ody on February 20, 2007. Upon arrival at the federal facility, Turner was told hi s state and federal sentences were being served consecutivel y, so he wrote a letter da ted August 4, 2007, seeking clarification of his sentence. On Septem ber 6, 2007, the Bureau of Prisons (“BOP”) recalculated his sentence to reflect that his 63-month fe deral sentence in Turner I began on November 22, 2005, the date it was imposed. On May 7, 2008, the federal court reduced the Turner I sentence to 60 months’ imprisonment pursuant to retroactive changes to the sentencing gui delines. Turner was released in 2009. Turner was arrested again on August 31, 2011, while on supervised release in
Turner I . He was charged with drug offenses and pleaded guilty on April 5, 2013, to conspiracy to possess with intent to distri bute five kilograms or more of cocaine hydrochloride. United States v. Turner , Case No. 1:11-cr-00103-JAR (E.D. Mo.) (“ Turner II ”). On June 17, 2013, he was sent enced to 21 months’ imprisonment for violation of his supe rvised release in Turner I and 240 months’ imprisonment for the new offense in Turner II , with the sentences to run concurrently. Appellate Case: 21-6151 Document: 010110677612 Date Filed: 04/29/2022 Page: 23 On May 6, 2021, Turner fi led a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, asserting f our grounds for relief. At bottom, he sought an update of his “computation summary” to show part of his sentence in Turner I was served concurrently with hi s prior state sentence. 2 In ground one, he argued the BOP failed to update his “computation summary” to refl ect a recalculation of his sentence and failed to recommend to the sentencing court that it amend its judgment in Turner I to reflect the “legal effe ct” of that recalculation. In ground three, he asserted ground one constituted a due process violation. In grounds two and four, Turner argued that the BOP’s denial of his application for a nunc pro tunc designation 3 extended his prison sentence and also caused various administrative detrim ents, such as a designation of a higher r ecidivism risk level. A magistrate judge recommended that th e district court dismiss Turner’s petition for lack of jurisdicti on. As to grounds one and three, the magistrate judge determined that Turner could litigate the legal challenges to his sentence through a habeas petition under 28 U.S.C. § 2255, and because § 2255 provided an avenue for relief, the court lacked juri sdiction under § 2241. As to grounds two and four, which

2 We note here that although the BOP denied Turner’s request for a nunc pro tunc designation, he received that benefit nonetheless as his federal sentence in Turner I ran uninterrupted while he was in state custody.

3 Title 18 U.S.C. § 3621(b) permits the BOP to “designate any available penal or correctional facility that meets minimu m standards of health and habitability established by the Bureau, whether main tained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be a ppropriate and suitable.” Appellate Case: 21-6151 Document: 010110677612 Date Filed: 04/29/2022 Page: 34 challenged the execution of his Turner I sentence, the court dete rmined that it lacked jurisdiction to consider thos e claims because Turner wa s no longer in custody on a
Turner I sentence. The sentence imposed after revocation of his supervised release had expired. Turner objected, but the dist rict court accepted th e magistrate judge’s recommendation and dismissed the petition for la ck of jurisdiction. Turner appealed and filed a motion for leave to proceed in forma pauperis.
II To prevail on a motion to proceed in fo rma pauperis, “an appellant must show a financial inability to pay the required filin g fees and the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 ( 10th Cir. 1991). We review a district court’s dismissal of a hab eas corpus petition under 28 U.S.C. § 2241 de novo. Garza
v. Davis , 596 F.3d 1198, 1203 (10th Cir. 2010). Because Turner appears pro se, we construe his filings liberally, but we do not serve as his advocate. See Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 84 0 (10th Cir. 2005). A § 2241 petition attacks the execution of a sentence. Sandusky v. Goetz , 944 F.3d 1240, 1246 (10th Cir. 2019). District courts only have jurisdiction to hear habeas petitions by petitioners who are “ in custody in violation of the Constitution or laws or treaties of the United States.” Maleng v. Cook , 490 U.S. 488, 490 (1989) (quoting 28 U.S.C. § 2241(c )(3)). A federal prisoner ge nerally may only challenge a conviction or sentence by f iling a petition under § 2255 a nd may resort to a petition under § 2241 only if § 2255 woul d be “inadequate or ineffectiv e to test the legality of Appellate Case: 21-6151 Document: 010110677612 Date Filed: 04/29/2022 Page: 45 his detention.” 28 U.S.C. § 2255(e); Prost v. Anderson , 636 F.3d 578, 580 (10th Cir. 2011).
III Here, even construed liberally, Turner has not raised a r easoned, nonfrivolous argument on appeal. Therefore, our analys is of both his motion to proceed in forma pauperis and the merits of his appeal follo w the same path. We address each of Turner’s arguments in turn. 4
A. First Issue Turner first claims that “the petition should be read as a challenge to his present sentence to the extent that it has been enhanced by the allegedly invalid prior convictions.” Aplt. Br. at 6. He claims that his petition was not construed liberally and, if it had been read properly, “P etitioner would sati sfy the ‘in custody’ requirement” as to grounds tw o and four of his petition, which pertain to the denial by the BOP of a nunc pro tunc designation as to Turner I

. Id. Turner’s argument is unpersuasive for tw o reasons. First, a habeas petitioner does not remain “in custody” after a sentence e xpires, even if that sentence is used to enhance a subsequent sentence. See Maleng , 490 U.S. at 492. Turner was not “in custody” as to Turner I when the district court dism issed grounds two and four for

4 We also note that Turner makes novel arguments in his reply, such as an assertion that equitable tolling applies to his petition and arguments regarding the Administrative Procedures Act. Even assuming these arguments were properly before us, they are unpersuasive , and it is unclear how or w hy they are relevant to the issues on appeal. Appellate Case: 21-6151 Document: 010110677612 Date Filed: 04/29/2022 Page: 56 lack of jurisdiction. Second, even constr uing this argument liberally, Turner has not explained how his prior sentences unlawfully extended his sentence in Turner II . We assume he believes that a nunc pro tunc designation in Turner I would somehow undermine the judgment in Turner II , but in Turner II , he received the applicable mandatory minimum for offenders with onl y one prior convicti on for a serious drug conviction. See 21 U.S.C. § 841 (ame nded 2010). Moreover, he explicitly acknowledged that he was facing such a mandatory minimum in Turner II , and it was “due to the government’s willingness to file only one of th e defendant’s prior convictions.” Turner II , Doc. No. 1349 (Nov. 19, 2015). Accordingly, everyone including Turner agreed that his mandatory minimum sent ence would be triggered by one, and only one, prior conviction. Whet her his prior sentence on that conviction ran concurrently or consecutively with a nother conviction would not have affected his sentencing in Turner II

. B. Second Issue Turner next argues that the district court “erred in its ruling that it did not have jurisdiction.” Aplt. Br. at 7. He asserts “there is a live justiciable question” regarding the recalculation of his sentence in Turner I

. Id. But the district court did not address justiciability. Even assuming there is a ju sticiable question here, the district court was without jurisdiction because Turner is not in custody under Turner
I

and Turner has not establishe d that § 2255 is inadequate to test his incarceration in
Turner II . Accordingly, his justiciabil ity arguments are not persuasive. Appellate Case: 21-6151 Document: 010110677612 Date Filed: 04/29/2022 Page: 67 C. Third Issue Turner claims that the district court “f ailed to consider a statement by the court that imposed Turner I concerning th e purpose for which the sentence was recalculated and accepted the Respondents e xplanation of the recalculation which is contrary to the record.” Id. He fails to tell us what that statement was. The recalculation in Turner I appears to be due to retroact ive application of amendments to the sentencing guidelines for crack-cocain e offenses. Alterna tively, this argument could be construed as relating to the recalculation of Turn er’s time served after his sentences were determined to run concurrently. Regardless of the approach applied, neither would affect the sentence in Turner II , which is the only sentence he is currently serving.
D. Fourth Issue Turner asserts the district court stat ed it never received copies of his administrative grievances despite him sendi ng copies. He believe s the district court adopted the magistrate judge’s reco mmendation without considering his administrative grievances. Turner subm itted those grievances with his objections, and the district court explic itly considered Turner’s obj ections before adopting the recommendation. Moreover, reviewing th e grievances, we cannot see how they might show that Turner is entitled to relief.
E. Fifth Issue Turner asserts “[t]he District Court[’s ] adoption of the Appeals Administrators claim that because Petitioner was always in federal custody the BOP did not review Appellate Case: 21-6151 Document: 010110677612 Date Filed: 04/29/2022 Page: 78 his sentence for a nunc pro tunc designation and denied his appeal is inconsistent with the record. In Turner I, Petitioner was released by the USM into the custody of the State of Missouri, without a writ.” Id. at 9. The magistra te judge noted not only that Turner was released on bond to Missour i officials, but also that the release on bond was in error. Moreover, the time in state custody ran concurrently with Turner’s federal sentence, so he spent no additional time in prison because of his state sentence or any erroneous release on bond. Turner fa ils to establish how further consideration of his release on bond wo uld support his arguments for relief.
F. Sixth Issue Turner argues that a petition under 28 U. S.C. § 2255, which he previously filed, is inadequate because the record in su ch a petition does not reflect that he served his federal and state se ntences concurrently. He cl aims this petition must be granted to correct the underlying judgment in Turner I , presumably so that a future § 2255 petition could be successful. This is unpersuasive for tw o reasons. First, Turner does not explain, nor can we discer n, why he would be unable to make the same general arguments in a § 2255 petition that he makes now. He asks that the BOP be ordered to update his “computati on summary” and that the BOP be ordered to recommend that the sentencing court in Turner I amend its judgment. In his reply, Turner makes a conclusory st atement that he is challengi ng the BOP’s action rather than his sentence. But his request for relief appears targeted at the amount of time he is required to serve under his present sentence in Turner II , and nothing in his Appellate Case: 21-6151 Document: 010110677612 Date Filed: 04/29/2022 Page: 89 arguments indicate why § 2255 is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e); Prost , 636 F.3d at 580. Second, the relief Turner seeks does not appear to pertain to the manner in which his sentence is executed. Construing his brief libe rally, Turner believes that the BOP was supposed to award him benef its like good-time credits , a lower security level designation, or certain privileges as if he had on ly one prior conviction. See Hale v. Fox , 829 F.3d 1162, 1165 n.2 (10th Ci r. 2016) (noting that § 2241 is the appropriate vehicle for challe nging prison disciplinary matters such as deprivation of good-time credits). No matter how liberally we construe his brief, however, we cannot discern what specific be nefits Turner believes he lost or how an updated judgment or recalculation of his time woul d entitle him to those benefits. Turner does not provide any basis in law or BOP policy that would require prison officials to provide those benefits to so meone who has multiple prior convictions even though all were served concurrently. Because Turner does not actually ask for these benefits or specify what they might be, he has not me t his burden of showing why § 2255 is not the appropriate vehicle to obtain the amended judgment he appears to seek. Appellate Case: 21-6151 Document: 010110677612 Date Filed: 04/29/2022 Page: 910 IV For the foregoing reasons, we AFFIRM the district court’s dismissal of Turner’s petition and DENY his moti on to proceed in forma pauperis.

Entered for the Court

Mary Beck Briscoe Circuit Judge Appellate Case: 21-6151 Document: 010110677612 Date Filed: 04/29/2022 Page: 10