Michael Fiorito v. Cynthia Entzel ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 30 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL FIORITO, No. 19-55491
Petitioner-Appellant, D.C. No. 5:17-cv-02158-JFW-KES
v.
MEMORANDUM*
CYNTHIA ENTZEL,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted April 20, 2021**
Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.
Federal prisoner Michael Fiorito appeals pro se from the district court’s
judgment dismissing his 28 U.S.C. § 2241 habeas corpus petition. We have
jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, see Alaimalo v. United
States, 645 F.3d 1042, 1047 (9th Cir. 2011), we affirm.
*
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).
Fiorito contends that the Bureau of Prisons (“BOP”) violated his right to due
process by designating him a violent offender and increasing his custody score,
which resulted in his classification as a medium-security inmate. This contention
is not cognizable in a habeas petition. This court has already determined that
Fiorito’s transfer from a low-security to a medium-security prison did not subject
him to greater restrictions of his liberty sufficient to invoke habeas jurisdiction.
See Fiorito v. Entzel, 829 F. App’x 192 (9th Cir. 2020) (citing Bostic v. Carlson,
884 F.2d 1267, 1269 (9th Cir. 1989)). None of Fiorito’s allegations in these
proceedings supports a different conclusion.
Fiorito’s allegation that the BOP violated the “Accardi doctrine” fares no
better. Insofar as Fiorito argues that the BOP failed to follow its program
statements, “[a] habeas claim cannot be sustained based solely upon the BOP’s
purported violation of its own program statement because noncompliance with a
BOP program statement is not a violation of federal law.” Reeb v. Thomas, 636
F.3d 1224, 1227 (9th Cir. 2011). To the extent Fiorito alleges violations of federal
law independent of the BOP’s alleged non-compliance with its program
statements, his allegations are not supported by the record.
We do not reach Fiorito’s assertion that the First Step Act imposes due
process requirements on the BOP because he did not develop this argument. See
United States v. Williamson, 439 F.3d 1125, 1138 (9th Cir. 2006).
2 19-55491
Finally, the district court did not err by denying Fiorito’s motions to strike
the government’s answer and for summary judgment.
AFFIRMED.
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