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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10648

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BENJAMEN FRANKLIN WHITE, JR., also known as Benjamin Franklin White,

Jr., also known as Lynn White,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:02-CR-4-1

Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

In 2002, Benjamen Franklin White, Jr., federal prisoner # 28122-177 pled

guilty to one count of being a convicted felon in possession of a firearm and was

sentenced to 96 months’ imprisonment.

More than five years later, White filed a pleading entitled, “Request for

Nunc Pro Tunc Clarification of Judgment,” asserting that, following his federal

sentencing, he had been incarcerated in a state prison facility for approximately

United States Court of Appeals

Fifth Circuit

F I L E D

March 12, 2010

Charles R. Fulbruge III

Clerk

Case: 09-10648 Document: 00511049994 Page: 1 Date Filed: 03/12/2010
No. 09-10648

 See United States v. Edwards, 711 F.2d 633, 633 (5th Cir. 1983). 1

See Leal v. Tombone, 341 F.3d 427, 427–30 (5th Cir. 2003); United States

2

v. Tubwell, 37 F.3d 175, 177 (5th Cir. 1994). 

United States v. Brown, 753 F.2d 455, 456 (5th Cir. 1985). 3

Garcia v. Reno, 234 F.3d 257, 258 (5th Cir. 2000). 4

Brown, 753 F.2d at 456. 5

See id.

6

2

six years. He contended that he was entitled to credit against his federal

sentence for the time spent in state custody. The district court denied White’s

motion without assigning reasons.

White now appeals the denial of his pro se motion. He argues that a

remand is required because the district court did not assign reasons for the

denial of relief. Because the record conclusively shows that White is entitled to

no relief, a statement of reasons was not required.1

White argues that he is entitled to credit on his federal sentence for the

six-year period he spent in state custody following his sentencing by the district

court. White’s claim for credit on his federal sentence for the time he was

incarcerated in state prison should be construed as seeking habeas relief under

28 U.S.C. § 2241 because he is challenging the manner in which his sentence 2

is being executed rather than the legality of his conviction or the validity of his

sentence. This court “reviews de novo the dismissal of a § 2241 petition on the 3

pleadings.”4

“To entertain a § 2241 habeas petition, the district court must, upon the

filing of the petition, have jurisdiction over the prisoner or his custodian.”5

White filed his pleading in the Northern District of Texas while incarcerated in

a federal prison facility in Arkansas. As a result, the district court was without

jurisdiction to consider the merits of White’s petition.6

Case: 09-10648 Document: 00511049994 Page: 2 Date Filed: 03/12/2010
No. 09-10648

3

We modify the judgment of the district court to explicitly reflect a

dismissal for want of jurisdiction to entertain White’s request. The judgment is

affirmed as so modified.

AFFIRMED AS MODIFIED.

Case: 09-10648 Document: 00511049994 Page: 3 Date Filed: 03/12/2010