David Fitch v. Calvin Johnson

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 14, 2018
• Docket: 17-55658
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 14 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DAVID KENT FITCH, a.k.a. David Lee No. 17-55658 Krause, a.k.a. Daniel Joseph O’Hare, D.C. No. 5:16-cv-01227-DOC Petitioner-Appellant,

v. MEMORANDUM*

CALVIN JOHNSON,

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Submitted June 12, 2018**

Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.

Federal prisoner David Kent Fitch appeals pro se from the district court’s

denial of his 28 U.S.C. § 2241 habeas corpus petition. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

Fitch contends that he is entitled to credit against his current sentence for the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). time spent in custody from February 8, 2000, through February 22, 2007.

According to Fitch, he is entitled to this sentencing credit under Zavala v. Ives, 785

F.3d 367 (9th Cir. 2015), and Bureau of Prisons (“BOP”) policy statements, and

because his first sentence had not been discharged when his current sentence was

imposed. Reviewing de novo, see id. at 370, we conclude that the district court did

not err in denying Fitch relief.

The time that Fitch seeks to apply to his current sentence was credited

towards an earlier sentence, and therefore he is not entitled to any additional credit.

See 18 U.S.C. § 3585(b); United States v. Wilson, 503 U.S. 329, 337 (1992).

Zavala does not compel a contrary result. The record shows that Fitch’s first

sentence was discharged by the time the district court imposed the current

sentence, and therefore his current sentence cannot run concurrently to his first

sentence. See 18 U.S.C. § 3584(a). Finally, any alleged non-compliance with

BOP policy statements cannot support section 2241 relief. See Reeb v. Thomas,

636 F.3d 1224, 1227-28 (9th Cir. 2011).

The district court did not abuse its discretion by declining to consider

arguments as to the timing of the prosecutions that Fitch raised for the first time in

his objections to the magistrate judge’s report and recommendation. See Brown v.

Roe, 279 F.3d 742, 744 (9th Cir. 2002). In addition, because the record

conclusively shows that Fitch was not entitled to relief under section 2241, no

2 17-55658 evidentiary hearing was required. See Anderson v. United States, 898 F.2d 751,

753 (9th Cir.1990).

Fitch’s motion for release pending appeal is denied as moot.

AFFIRMED.

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