Patrick O. Evans v. Mark A. Henry, Warden Federal Bureau of Prisons United States Department of Justice

70 F.3d 1278, 1995 U.S. App. LEXIS 39393, 1995 WL 696562

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 24, 1995
• Docket: 94-56715
• Status: Unpublished

Opinion

70 F.3d 1278

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Patrick O. EVANS, Petitioner-Appellant,
v.
Mark A. HENRY, Warden; Federal Bureau of Prisons; United
States Department of Justice, Respondents-Appellees.

No. 94-56715.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 20, 1995.*
Decided Nov. 24, 1995.

Before: PREGERSON, NORRIS, and REINHARDT, Circuit Judges.

MEMORANDUM**

Federal prisoner Patrick O. Evans appeals pro se the district court's denial of his habeas corpus petition brought under 28 U.S.C. Sec. 2241. Evans contends that the district court erred by finding that he was not entitled to presentence sentence credits for time Evans spent in a hospital and under home confinement. We have jurisdiction under 28 U.S.C. Secs. 2253, 1291. We review de novo, Grady v. Crabtree, 958 F.2d 874, 874 (9th Cir.1992) (per curiam), and vacate and remand.

In the district court Evans claimed that, during the time he was in the hospital and under house arrest, he was in the "constructive custody of the ... Bureau of Prisons and the U.S. Marshal's Service." Because the district court did not have the benefit of Reno v. Koray, 115 S.Ct. 2021 (1995) before dismissing Evans's claim, we remand for further consideration in light of that opinion. The record does not show, for example, whether Evans was in the hospital or at home under a detention or release order. See id. at 2026-27, 2029.

Finally, we decline to reach the merits of Evans's claims raised for the first time on appeal.

VACATED and REMANDED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, we deny Evans's request for oral argument, and for the appointment of counsel for purposes of oral argument

** 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