United States v. Cruz ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-20812
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD CRUZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-92-CR-184
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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that this opinion should not be published and is not precedent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.