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Marquez-Mayorga v. Willis

United States District Court, W.D. Louisiana, Lake Charles Division

June 11, 2018

CANCIANO MARQUEZ-MAYORGA REG. # 57155-018
v.
J.S. WILLIS

         SECTION P

          TRIMBLE JUDGE.

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.

         Before 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”).

         This 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.

         I.

         Background

         The 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.

         II.

         Law & Analysis

         A. Screening of Habeas Corpus Petitions

         A 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.

         B. Application

         A § 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 ...


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