United States v. Cruz

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-20812 Summary Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD CRUZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-92-CR-184 - - - - - - - - - - May 20, 1996

Before DAVIS, BARKSDALE, and DEMOSS, Circuit Judges.

PER CURIAM:*

Richard Cruz contends that the district court erred in denying

his motion to be transferred from state to federal custody pursuant

to Fed. R. App. P. 23(a), and that he is entitled to credit for

time served on his federal sentence.

The denial of Cruz's motion, insofar as he is seeking relief

under Rule 23(a), is affirmed substantially for the reasons stated

by the district court.

Insofar as Cruz is challenging the manner in which his

sentence is being executed, his motion is construed as a petition

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-20812 -2-

for habeas relief pursuant to 28 U.S.C. § 2241. United States v.

Brown, 753 F.2d 455, 456 (5th Cir. 1985). The district court's

dismissal of Cruz's § 2241 petition, based on Cruz's failure to

demonstrate that he has exhausted his administrative remedies with

respect to the calculation of his federal sentence, is affirmed.

See United States v. Dowling, 962 F.2d 390, 393 (5th Cir. 1992).

Cruz asserts for the first time on appeal that he is entitled

to have his federal and state sentences run concurrently, and that,

as a result of the federal detainer lodged against him, he is being

deprived of the right to serve as a trusty, the right to earn

additional good-time credits, and the right to advance his parole

date. Because these issues were not raised before the district

court, they are reviewable only for plain error. Highlands Ins. v.

National Union Fire Ins., 27 F.3d 1027, 1031-32 (5th Cir. 1994),

cert. denied, 115 S. Ct. 903 (1995). Cruz has failed to show that

error, plain or otherwise, occurred in connection with the denial

of these claims. See United States v. Dovalina, 711 F.2d 737, 739

(5th Cir. 1983).

Cruz's motion to file a reply brief out-of-time is GRANTED.

AFFIRMED.