* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 5 2004 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GERALD CARROLL, Petitioner-Appellant,

v. T. C. PETERSON, Warden, Respondent-Appellee. No. 03-6356 (D.C. No. 03-CV-825-HE) (W.D. Oklahoma)



### ORDER AND JUDGMENT *

Before SEYMOUR , LUCERO , and O’BRIEN , Circuit Judges.
Gerald Carroll filed a petition for a writ of habea s corpus pursuant to 28 U.S.C. § 2241 in Oklahoma federal district court. The district court denied relief,1 “We note that a Certificate of Appealability under the Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 10 4-132, 110 Stat. 1214 (Apr. 24, 1996), is not required to appeal a final order in a proceeding under 28 U.S.C. § 2241.” McIntosh v. United States Parole Comm’n , 115 F.3d 809, 810 n.1 (10th Cir. 1997) (citation omitted). -2- and he appeals. We affirm. 1 Tulsa police arrested Mr. Carroll in November 1989 on a charge of second degree burglary. He went to trial on this charge a nd received a state sentence of thirty-five years imprisonment in 1990. The follow ing year, federal authorities charged Mr. Carroll with conspiracy to commit armedrobbery, armed bank robbery, and possession of a firearm in the commiss ion of a crime of violence. After trial and conviction, Mr. Carroll received a combined federal sentence of 180 months. The sentencing court was silent as to whether his federal sentence was to run concurrently or consecutively to his state sentence. In October 2000, the state of Oklahoma paroled Mr. Carroll and trans ferred him to federal custody. At this time, Mr. Carroll discovered the Bureau of Prisons (BOP) had not designated the state prison as his place of confine ment for his federal sentence, and therefore he would serve his state and federal sentences consecutively. This discovery led Mr. Carroll to file the instant petit ion. First, Mr. Carroll contends the federal sentencing court should have provided for concurrent federal and state sentences pursuant to U.S.S.G. § 5G1.3(c). Despite Mr. Carroll’s best efforts to co nstrue this claim as one within-3-

the reach of a § 2241 petition, this court has prev iously determined that alleged errors in sentencing must be brought pursuant to 28 U.S.C. § 2255. See Bradshaw v. Story , 86 F.3d 164, 166-67 (10th Cir. 1996). Thus, Mr. Carroll’s petition challenging the validity of his sentence, rather th an its execution, must be brought under § 2255, id. The district court properly dismissed this claim for lack of jurisdiction. Next, Mr. Carroll challenges the BOP’s refusal to i ssue a nunc pro tunc order designating the state prison as his place of confinement for his federal sentence, thereby allowing his state and federal se ntences to run concurrently. The BOP, in the person of the United States Attorne y General, “has the exclusive authority to determine when a federal sentence shal l begin and where the federal sentence shall be served.” Weekes v. Fleming , 301 F.3d 1175, 1179 (10th Cir. 2002). “There is a presumption that a federal sent ence imposed after a prior state sentence will be served consecutively to the state sentence.” Id. (citing 18 U.S.C. § 3584(a)). Because the sentencing judge in Mr. Ca rroll’s federal trial was silent as to whether his state and federal sentences wouldrun concurrently, the BOP was clearly within its discretion in denying Mr. Carrol l’s requested order. We GRANT Mr. Carroll’s request to proceed in forma pauperis and2 We decline to consider Mr. Carroll’s newly assertedclaim of ineffective

assistance of counsel at sentencing. See United States v. Mora , 293 F.3d 1213, 1216 (10th Cir. 2002) (“[W]e find no reason to devi ate from the general rule that we do not address arguments presented for the firsttime on appeal.”). -4- AFFIRM the district court’s dismissal his petition. 2 ENTERED FOR THE COURT
Stephanie K. Seymour Circuit Judge