Joel D. Dreer v. Edwin Meese, Iii, Attorney General Warden, of F.C.I., Lexington, Kentucky

863 F.2d 883, 1988 U.S. App. LEXIS 16338, 1988 WL 128034

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 2, 1988
• Docket: 88-5522
• Status: Unpublished

Opinion

863 F.2d 883

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Joel D. DREER, Petitioner-Appellant,
v.
Edwin MEESE, III, Attorney General; Warden, of F.C.I.,
Lexington, Kentucky, Respondents-Appellees.

No. 88-5522.

United States Court of Appeals, Sixth Circuit.

Dec. 2, 1988.

Before DAVID A. NELSON and BOGGS, Circuit Judges, and GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Petitioner filed this habeas corpus action under 28 U.S.C. Sec. 2241 challenging a pre-sentence credit determination of the Bureau of Prisons. The magistrate to whom the matter was referred recommended the petition be dismissed. The district court adopted the recommendation, over petitioner's objections, and this appeal followed. On appeal the parties have briefed the issues, petitioner proceeding pro se.

Petitioner contends that certain pre-sentence jail time, previously credited against one offense, should also be credited against a second offense for which he has now been given a consecutive sentence.

Upon consideration, we find the district court correctly dismissed the petition on the authority of Shelvy v. Whitfield, 718 F.2d 441 (D.C.Cir.1983). Petitioner was not entitled to further pre-sentence credit once he began serving an actual federal sentence of incarceration.

In his brief before us, petitioner also makes a double jeopardy claim regarding the alteration of his second sentence from a concurrent sentence to a consecutive one. Petitioner specifically disclaimed this argument in the district court, and therefore cannot raise it on this appeal. Though the claim may have some validity, see United States v. Naas, 755 F.2d 1133, 1136 (5th Cir.1985), it must be presented first to the district court, and petitioner retains the option to do so.

The district court's judgment is therefore affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.