Herber Silvas-Rodriguez v. Craig Apker ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERBER MARTIN SILVAS- No. 19-15153
RODRIGUEZ,
D.C. No. 1:18-cv-00620-SKO
Petitioner-Appellant,
v. MEMORANDUM*
CRAIG APKER,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Sheila K. Oberto, Magistrate Judge, Presiding**
Submitted August 19, 2019***
Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.
Federal prisoner Herber Martin Silvas-Rodriguez appeals pro se from the
district court’s judgment denying his 28 U.S.C. § 2241 habeas corpus petition. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
have jurisdiction under 28 U.S.C. § 1291. We review de novo the denial of a
section 2241 petition, see Schleining v. Thomas, 642 F.3d 1242, 1246 (9th Cir.
2011), and we affirm.
Silvas-Rodriguez was arrested by state authorities on May 21, 2012, to face
state charges. On February 5, 2013, he was transferred to federal custody to face
federal charges pursuant to a writ of habeas corpus ad prosequendum. After the
federal court imposed his sentence on January 9, 2014, Silvas-Rodriguez was
returned to state custody on January 28, 2014. Silvas-Rodriguez argues that he
should receive credit towards his federal sentence for the time period that he was in
federal custody between February 2013 and January 2014. Contrary to his
argument, however, the record reflects that Silvas-Rodriguez remained in primary
state custody during this time period. See id. at 1243 n.1. Moreover, because
Silvas-Rodriguez received credit against his state sentence for this time period, he
is not entitled to any additional federal credit. See 18 U.S.C. § 3585(b); United
States v. Wilson, 503 U.S. 329, 337 (1992) (defendant may not receive “double
credit for his detention time”). Finally, Silvas-Rodriguez’s federal sentence
commenced on June 9, 2014, the date he was taken into federal custody to
commence service of his federal sentence. See 18 U.S.C. § 3585(a). Contrary to
Silvas-Rodriguez’s contention, his federal sentence cannot be backdated prior to
this date. See Schleining, 642 F.3d at 1247-48.
2 19-15153
In light of this disposition, we do not reach the parties’ remaining
arguments.
Appellee’s request for judicial notice is granted.
AFFIRMED.
3 19-15153