     Case: 11-30723     Document: 00511764212         Page: 1     Date Filed: 02/22/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 22, 2012
                                     No. 11–30723
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JORGE PUGA,

                                                  Petitioner - Appellant

v.

WILLIAM SHERROD,

                                                  Respondent - Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:11–CV–412


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Jorge Puga, federal prisoner #A074-58-179, appeals the district court’s
denial of his 28 U.S.C. § 2241 petition for writ of habeas corpus challenging his
sentence for possession of less than 50 kilograms of marijuana with intent to
distribute and the Bureau of Prisons’ (BOP) denial of his request for a nunc pro
tunc designation of state prison as the place for the service of his federal
sentence. Puga asserted that he should have received credit on his federal
sentence for the state sentence he had previously served for the same conduct.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11–30723

      Puga argues that the district court committed procedural error by refusing
to consider his objections to the magistrate judge’s report and recommendation.
He asserts that his requests for an extension of time to file his objections were
timely under the mailbox rule and that he could not have filed his objections any
earlier than he did because of a prison lock down. He contends that the refusal
to consider his objections was a violation of his due process rights and that his
objections were meritorious.
      Any error in denying Puga’s § 2241 petition without first affording Puga
the ability to object to the magistrate judge’s report and recommendation was
harmless. See Braxton v. Estelle, 641 F.2d 392, 397 (5th Cir. 1981); McGill v.
Goff, 17 F.3d 729, 731 (5th Cir. 1994), overruled on other grounds by Kansa
Reinsurance Co. v. Congressional Mortgage Co., 20 F.3d 1362, 1373–74 (5th
Cir.1994). The district court was able to engage in a meaningful review of the
magistrate judge’s report and recommendation absent Puga’s objections because
none of Puga’s claims “arose from a factual dispute and the district judge could
assess the merits of the petition from its face.” Braxton, 641 F.2d at 397
(internal quotation marks and citation omitted); see also McGill, 17 F.3d at 732.
      Puga argues that the district court erred by not finding that the
Government intentionally delayed bringing the charges against him and that the
sentencing court erred by not granting him a departure from the guidelines
sentence range for his having served a state sentence for the same conduct. He
maintains that the delay in bringing the charges against him removed his case
from the heartland of typical cases, thus justifying a departure.
      Puga’s challenge to the sentencing court’s failure to grant him a departure
because the Government delayed bringing the charges against him is a challenge
to the judgment of conviction and sentence against him. As Puga is challenging
only his sentence and not his conviction, his claims do not fall within the savings
clause of 28 U.S.C. § 2255(e), and they are not cognizable in a § 2241 petition.
See Padilla v. United States, 416 F.3d 424, 427 (5th Cir. 2005).

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      Puga argues that he was entitled to a nunc pro tunc designation of state
prison as the place for service of his federal sentence from the BOP that would
have effectively made his federal sentence run concurrently with his expired
state sentence for the same conduct. He asserts that the BOP violated his equal
protection rights by not contacting the sentencing court for its input or granting
his request for a nunc pro tunc designation as it did for a similarly situated
inmate in Cleveland v. Fox, No. 1:08-cv-886, 2009 WL 1506969, at *1–*2 (E.D.
Tex. May 28, 2009). For the first time on appeal, Puga argues that the BOP’s
actions were racially motivated because white and black inmates are given
preferential treatment over Mexican inmates. In support of this claim, Puga
cites viewpoints on immigration matters expressed on talk radio and the lack of
any Spanish radio stations near Pollock, Louisiana, where he is incarcerated.
      Puga’s request for credit for his expired state sentence for the same
conduct was raised at sentencing, and the sentencing court declined to give Puga
credit for the time served on the state sentence. Instead of giving Puga credit
for the expired sentence, the sentencing court explicitly ordered that Puga’s
federal sentence run consecutively to his unexpired state sentence for possession
of a prohibited item in a correctional facility. Thus, while the BOP normally
contacts the sentencing court in making its determination whether to grant a
nunc pro tunc designation, this was unnecessary because the record showed that
the sentencing court intended for Puga not to receive credit for his expired state
sentence. See Hunter v. Tamez, 622 F.3d 427, 429 (5th Cir. 2010). Puga’s
reliance on Cleveland is unavailing because, unlike in Puga’s case, the
sentencing court in that case did not express any intent for the sentences to run
consecutively. See Cleveland, 2009 WL 1506969, at *1-*2. Furthermore, Puga
was not statutorily entitled to credit for his expired state sentence for the same
conduct because that detention was credited against a different sentence and
because there is no statutory entitlement to credit for a state sentence on a
related charge. See 18 U.S.C. § 3585(b); Newby v. Johnson, 81 F.3d 567, 569 (5th

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Cir. 1996). Given the intent of the sentencing court and the lack of statutory
entitlement to credit for the expired state sentence, the BOP acted well within
its discretion when it denied Puga’s request for a nunc pro tunc designation. See
§ 3585(b); 18 U.S.C. § 3584(a)–(b); 18 U.S.C. § 3621(b); BOP Program Statement
5160.05; Newby, 81 F.3d at 569.
      AFFIRMED.




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