Thomas v. Barron

52 F. App'x 932

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 10, 2002
• Docket: No. 01-57000; D.C. No. CV-01-04376-CMW
• Status: Published

Opinion

MEMORANDUM

**

Federal prisoner Robert Thomas appeals pro se the denial of his 28 U.S.C. § 2241 habeas petition, challenging the forfeiture of his “street time.” We have jurisdiction pursuant to 28 U.S.C. § 2253. Reviewing de novo, see McLean v. Crabtree, 173 F.3d 1176, 1180 (9th Cir.1999), we affirm.

Thomas contends that the United States Parole Commission (“Commission”) exceeded its statutory authority in forfeiting his “street time” based on a conviction that was set aside under California Penal Code § 1203.4.

We are not persuaded by Thomas’ contention. Because Thomas’ prior conviction was not set aside based on innocence grounds, the Commission did not exceed its authority in considering the conviction in its decision to forfeit his “street time.” See United States v. Hayden, 255 F.3d 768, 772-74 (9th Cir.) (deciding that courts may consider prior convictions under § 1203.4 for federal sentencing purposes), cert. denied, — U.S. -, 122 S.Ct. 383, 151 L.Ed.2d 293 (2001); 28 C.F.R. § 2.20, Salient Factor Scoring Manual A.6 (stating that convictions that are set aside are to be counted in parole decisions unléss they were set aside on grounds of innocence).¹

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . Thomas’ request for appointment of counsel is denied. Thomas' motion for bail pending appeal is denied as moot.