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Cupp v. Myers

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

January 30, 2019

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

         SECTION P

          REPORT AND RECOMMENDATION

          KATHLEEN KAY MAGISTRATE JUDGE

         Before 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.

         I.

         Background

         As 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.

         II.

         Law & Application

         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 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).

         A 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)).

         C. Application to ...


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