United States District Court, W.D. Louisiana, Lake Charles Division
MICHAEL THOMAS CUPP REG. # 17129-035
REPORT AND RECOMMENDATION
KATHLEEN KAY MAGISTRATE JUDGE
the court is a pro se petition for writ of habeas corpus
filed under 28 U.S.C. § 2241, by Michael Thomas Cupp.
Doc. 1. Cupp is an inmate in the custody of the Bureau of
Prisons (“BOP”) and is currently incarcerated at
the Federal Correctional Institution at Oakdale, Louisiana.
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.
explained in greater detail in the court's amend order,
Cupp brings this petition to challenge the BOP's refusal
to afford him credit towards a federal sentence imposed by
this court in November 2014, for time spent in state custody
from January 2, 2014, to October 8, 2015. Doc. 4, pp. 1-2. On
initial review, the court explained its limited authority to
review challenges to BOP sentencing calculations.
Id. at 3. We then recognized that there was no error
under 18 U.S.C. § 3585(b) and that Cupp's only
available challenge appeared to be the BOP's refusal to
make a nunc pro tunc designation. Id. at 3-4 (and
cases cited therein). We also noted that the BOP is entitled
to substantial deference in such decisions. Id.
Accordingly, we ordered Cupp to attach a copy of the January
2018 denial of his request for nunc pro tunc decision and to
explain how the BOP might have erred in its ruling.
Id. at 4-5. Cupp has now complied, attaching a copy
of the BOP's January 2018 denial as well as this
court's denial of his motion to amend sentence. Doc. 5,
att. 1. Accordingly, the court now undertakes a second review
of his petition.
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.
§ 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
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c)(3).
district court may review a challenge to the BOP's
refusal to grant credit for time served or make a nunc pro
tunc designation through a § 2241 petition, after the
BOP has made a final decision on same. See Pierce v.
Holder, 614 F.3d 158, 160 (5th Cir. 2010). Under §
3585(b), a defendant is only entitled to presentence
detention credit for any other time spent in official
detention “that has not been credited against another
sentence.” United States v. Wilson, 112 S.Ct.
1351, 1353-56 (1992). Where a federal sentence is imposed
before a state sentence, the BOP may, at its discretion,
award credit for time served by designating nunc pro tunc the
state prison as the place in which the prisoner serves a
portion of his federal sentence. Pierce v. Holder,
614 F.3d 158, 160 (5th Cir. 2010). The BOP's procedure
for evaluating such requests is explained in the court's
amend order. See doc. 4, p. 4. Its decision on such
a request is reviewed for abuse of discretion. Branch v.
Pearce, 2015 WL 3936166, at *3 (W.D. Tex. Jun. 26, 2015)
(quoting Fegans v. United States, 506 F.3d 1101,
1105 (8th Cir. 2007)).
Application to ...