David Fitch v. Calvin Johnson ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 14 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID KENT FITCH, a.k.a. David Lee No. 17-55658
Krause, a.k.a. Daniel Joseph O’Hare,
D.C. No. 5:16-cv-01227-DOC
Petitioner-Appellant,
v. MEMORANDUM*
CALVIN JOHNSON,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted June 12, 2018**
Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.
Federal prisoner David Kent Fitch appeals pro se from the district court’s
denial of his 28 U.S.C. § 2241 habeas corpus petition. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
Fitch contends that he is entitled to credit against his current sentence for the
*
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).
time spent in custody from February 8, 2000, through February 22, 2007.
According to Fitch, he is entitled to this sentencing credit under Zavala v. Ives, 785
F.3d 367 (9th Cir. 2015), and Bureau of Prisons (“BOP”) policy statements, and
because his first sentence had not been discharged when his current sentence was
imposed. Reviewing de novo, see id. at 370, we conclude that the district court did
not err in denying Fitch relief.
The time that Fitch seeks to apply to his current sentence was credited
towards an earlier sentence, and therefore he is not entitled to any additional credit.
See 18 U.S.C. § 3585(b); United States v. Wilson, 503 U.S. 329, 337 (1992).
Zavala does not compel a contrary result. The record shows that Fitch’s first
sentence was discharged by the time the district court imposed the current
sentence, and therefore his current sentence cannot run concurrently to his first
sentence. See 18 U.S.C. § 3584(a). Finally, any alleged non-compliance with
BOP policy statements cannot support section 2241 relief. See Reeb v. Thomas,
636 F.3d 1224, 1227-28 (9th Cir. 2011).
The district court did not abuse its discretion by declining to consider
arguments as to the timing of the prosecutions that Fitch raised for the first time in
his objections to the magistrate judge’s report and recommendation. See Brown v.
Roe, 279 F.3d 742, 744 (9th Cir. 2002). In addition, because the record
conclusively shows that Fitch was not entitled to relief under section 2241, no
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evidentiary hearing was required. See Anderson v. United States, 898 F.2d 751,
753 (9th Cir.1990).
Fitch’s motion for release pending appeal is denied as moot.
AFFIRMED.
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