United States District Court, W.D. Louisiana, Lake Charles Division
RICHARD CRUZ REG. # 37737-069
UNITED STATES OF AMERICA
REPORT AND RECOMMENDATION
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE.
the court is a pro se petition for writ of habeas corpus
filed pursuant to 28 U.S.C. § 2241 by Richard Cruz. Cruz
is an inmate in the custody of the Bureau of Prisons
(“BOP”) and is currently incarcerated at the
Federal Correctional Institute at Oakdale, Louisiana.
matter has been referred to the undersigned for initial
review. For the reasons stated below, IT IS
RECOMMENDED that the petition be
DENIED and DISMISSED WITH
PREJUDICE under Rule 4 of the Rules Governing §
2254 Cases in the United States District Courts.
to a plea agreement, Cruz was convicted in the United States
District Court for the District of Massachusetts of one count
of conspiracy to possess with intent to distribute and to
distribute cocaine base and cocaine, a violation of 21 U.S.C.
§ 846, and one count of unlawful use of a communication
facility, a violation of 21 U.S.C. § 843(b). United
States v. Hernandez, No. 4:12-cr-40055(4), docs. 240,
250, 251 (D. Mass. Aug. 21, 2015). He was then sentenced on
August 21, 2015, to a total of 84 months' imprisonment,
including a 24-month enhancement under 18 U.S.C. § 3147
for the commission of an offense while on release.
Id. at doc. 404. The court ordered that 60 months of
that sentence would run concurrent with a 96-month term of
imprisonment imposed on Cruz on April 8, 2013, by the United
States District Court for the District of Puerto Rico.
Id. at doc. 404, p. 10; see United States v.
Gomez-Gonzalez, No. 3:11-cr-0241(37), doc. 3532 (D.P.R.
Apr. 8, 2013). It also specified that the remaining 24 months
of his Massachusetts sentence, the portion imposed under 18
U.S.C. § 3147, would run consecutive to the Puerto Rico
sentence. Hernandez, No. 4:12-cr-40055, at doc. 404,
did not appeal his conviction or sentence. Instead, he filed
pro se motions to amend judgment, alter judgment, and for the
return of personal property in the District of Massachusetts
in April 2018. Id. at docs. 467, 468, 470. The court
denied all three motions. Id. at doc. 472. He also
filed multiple motions to reduce sentence based on subsequent
amendments to the Sentencing Guidelines in the District of
Puerto Rico. Gomez-Gonzalez, No. 3:11-cr-0241(37),
at docs. 4788, 5127, 5688. The court eventually granted all
three motions and reduced Cruz's 96 month term of 78
months. Id. at doc. 5876.
now files the instant petition under § 2241, alleging
that the Bureau of Prisons (“BOP”) miscalculated
the time he served in pretrial custody and thus failed to
credit him for time served from his arrest on September 13,
2012, until his sentencing in the Massachusetts case on
August 18, 2015. Doc. 1.
Screening of Habeas Corpus Petitions
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.