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Cruz v. United States

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

January 7, 2019

RICHARD CRUZ REG. # 37737-069
v.
UNITED STATES OF AMERICA

         SECTION P

          REPORT AND RECOMMENDATION

          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 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.

         This 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.

         I.

         Background

         Pursuant 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, p. 10.

         Cruz 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.

         Cruz 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.

         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. ...


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