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Cupp v. Myers

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

November 9, 2018

MICHAEL THOMAS CUPP REG. # 17129-035
v.
WARDEN MYERS

         SECTION P

          MEMORANDUM ORDER

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE

         Before the court is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 by Michael Thomas Cupp. Cupp is an inmate in the custody of the Bureau of Prisons (“BOP”) and is currently incarcerated at the Federal Correctional Institute at Oakdale, Louisiana.

         This matter has been referred to the undersigned for initial review. For the reasons stated below, Cupp is ordered to amend his petition in order to show a right to federal habeas relief.

         I.

         Background

          Pursuant to a plea agreement, Cupp was convicted in this court of one count of failure to register as a sex offender, a violation of 18 U.S.C. § 2250(a). United States v. Cupp, No. 5:14-cr-0015, docs. 56, 58 (W.D. La. Nov. 21, 2014). On November 12, 2014, he was sentenced to a 60 month term of imprisonment. Id. at docs. 64, 68. The court did not specify whether the sentence would run concurrently with any other sentence. See Id. at docs. 68, 73. He then sought review of his conviction and sentence through a direct appeal and multiple post-conviction motions filed in the trial court. All of the motions were denied except for Cupp's Motion to Vacate under 28 U.S.C. § 2255, which remains pending.

         Cupp now brings the instant § 2241 petition, alleging that the BOP is improperly denying him credit for time spent in a Texas county jail from January 2, 2014, to October 8, 2015, awaiting the outcome of a state charge. Doc. 1. Cupp maintains that he was in federal custody from December 4, 2014, to October 8, 2015, based on a federal detainer filed on these charges. Id. He shows that he has pursued administrative remedies through the BOP on this claim and has been denied at each level. Doc. 1, att. 2.

         II.

         Law & Analysis

         A. Screening of Habeas Corpus Petitions

         A district court may apply any and 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. Section 2241

          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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