Jonny E. McClellan v. Larry F. Taylor, Warden

45 F.3d 436, 1994 U.S. App. LEXIS 40312, 1994 WL 721779

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 28, 1994
• Docket: 94-55727
• Status: Published

Opinion

45 F.3d 436
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Jonny E. McCLELLAN, Petitioner-Appellant,
v.
Larry F. TAYLOR, Warden, Respondent-Appellee.

No. 94-55727.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 19, 1994.*
Decided Dec. 28, 1994.

Before: SNEED, D.W. NELSON, and TROTT, Circuit Judges.

MEMORANDUM**

Jonny E. McClellan appeals pro se the district court's denial of his habeas corpus petition brought under 28 U.S.C. Sec. 2241 alleging that he was entitled to credit toward his sentence for the time he was released on bond and confined to his brother's home awaiting sentencing and direct appeal of his conviction. McClellan contends that the district court erred by finding that the restrictions on his liberty did not approach those of incarceration. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We review de novo, Grady v. Crabtree, 958 F.2d 874, 874 (9th Cir.1992), and affirm.

McClellan is entitled to credit toward his federal sentence for time spent "in official detention," 18 U.S.C. Sec. 3568 (current version at 18 U.S.C. Sec. 3585(b)), only if the conditions under which he was released approached incarceration. See Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925-26 (9th Cir.1993); Lahey v. Floyd, 992 F.2d 234, 235 (9th Cir.1993). McClellan's conditions of confinement in his brother's house were very similar to those in Lahey. See Lahey, 992 F.2d at 235. Although McClellan is correct that the defendant in Fraley stayed in her own home, other conditions of her confinement were more restrictive than McClellan's. See Fraley, 1 F.3d at 925-26. The district court correctly found that the conditions of McClellan's confinement did not approach those of incarceration.

McClellan's equal protection argument is not cognizable on appeal because he first raised the claim in his traverse. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.1994).

AFFIRMED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3