United States District Court, W.D. Louisiana, Lake Charles Division
CANCIANO MARQUEZ-MAYORGA REG. # 57155-018
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.
the court is an amended petition for writ of habeas corpus
filed pursuant to 28 U.S.C. § 2241 by pro se petitioner
Johnny Marquez-Mayorga. Marquez-Mayorga is an inmate in the
custody of the Bureau of Prisons (“BOP”) and is
currently incarcerated at the Federal Correctional Institute
at Oakdale, Louisiana (“FCIO”).
matter has been referred to the undersigned for review,
report, and recommendation in accordance with 28 U.S.C.
§ 636 and the standing orders of this court. For the
reasons stated below, IT IS RECOMMENDED that
the matter be DENIED and DISMISSED
WITH PREJUDICE under Rule 4 of the Rules Governing
§ 2254 Cases in the United States District Courts.
factual basis for Marquez-Mayorga's claims is provided in
our preceding Memorandum Order. Doc. 8. There we noted that
Marquez-Mayorga was challenging the BOP's calculation of
his sentence, and that it appeared that the BOP's
calculation did not reflect the Vermont federal district
court's order that the 135 month sentence imposed by that
court run concurrent with an 87 month sentence previously
imposed by a Florida federal district court. Id.
Accordingly, we ordered Marquez-Mayorga to provide the
BOP's decisions on his requests for administrative
remedy, in order that we might review the rationale for the
agency's decision. Id. Marquez-Mayorga has
complied with that order by filing an amended petition with
supporting documentation, and so we now complete our initial
review of his petition.
Screening of Habeas Corpus Petitions
district court may apply any or all of the rules governing
habeas petitions filed under 28 U.S.C. § 2254 to those
filed under § 2241. See Rule 1(b), Rules
Governing § 2254 Cases in the United States District
Courts. Rule 4 of the Rules Governing § 2254 Cases
authorizes preliminary review of such petitions, and states
that they must be summarily dismissed “[i]f it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief.” Id. at
Rule 4. To avoid summary dismissal under Rule 4, the petition
must contain factual allegations pointing to a “real
possibility of constitutional error.” Id. at
Rule 4, advisory committee note (quoting Aubut v.
Maine, 431 F.2d 688, 689 (1st Cir. 1970)). Accordingly,
we review the pleadings and exhibits before us to determine
whether any right to relief is indicated, or whether the
petition must be dismissed.
§ 2241 petition on behalf of a sentenced prisoner
“attacks the manner in which a sentence is carried out
or the prison authorities' determination of its
duration.” Pack v. Yusuff, 218 F.3d 448, 451
(5th Cir. 2000). In order to prevail, a § 2241
petitioner must show that he is “in custody in