Melvin Joseph Gitler v. United States of America, Bureau of Prisons

978 F.2d 1263

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.
Melvin Joseph GITLER, Appellant,
v.
UNITED STATES of America, Bureau of Prisons, Appellee.

No. 92-2403.

United States Court of Appeals,
Eighth Circuit.

Submitted: October 16, 1992.
Filed: October 28, 1992.

Before MAGILL, LOKEN, and HANSEN, Circuit Judges.

PER CURIAM.

1

Melvin Joseph Gitler, a federal prisoner, appeals the district court's1 denial of his 28 U.S.C. § 2241 petition. We affirm.

2

Gitler was sentenced on June 5, 1990, to fifty months imprisonment for bank fraud and making a false statement.2 He alleged that he reported to the U.S. Marshal's Office on June 19, 1990, as ordered by the sentencing court, but that he was told he would be on "furlough" until a facility was designated for him and that he was "going on home confinement as per the Attorney General." Gitler also alleged he was told not to leave the jurisdiction without informing the probation department or the Marshal's Office. He alleged he reported to federal prison camp in South Dakota on July 19, 1990.

3

Gitler claimed a thirty-day credit against his sentence for the time he spent at home. He also claimed he had been denied equal protection because he was treated differently than prisoners who were given credit for serving part of their sentences in home confinement or halfway houses. The district court summarily denied Gitler's petition.

4

Under 18 U.S.C. § 3568, Gitler could be given credit for "any days spent in custody in connection with the offense or acts for which [his] sentence was imposed." The thirty days Gitler spent in his home did not constitute custody under section 3568. See Villaume v. United States Dep't of Justice, 804 F.2d 498, 499 (8th Cir. 1986) (per curiam) (holding custody under section 3568 relates to actual custodial incarceration and does not include time criminal defendant was free on bond, either before or after conviction), cert. denied, 481 U.S. 1022 (1987).

5

Gitler's equal protection claim fails because he did not allege sufficient facts to show he was similarly situated to defendants who were sentenced to home confinement. Gitler provides no documentation showing that he was sentenced to home confinement and, in fact, alleges that he was not even under bond when he was sent home.

6

Accordingly, we affirm.

1

The Honorable John B. Jones, Chief Judge, United States District Court for the District of South Dakota

2

Relying upon our previous decision in Gitler v. United States Parole Comm'n, No. 92-1104, slip op. at 2 (8th Cir. Mar. 23, 1992) (per curiam), we take judicial notice that Gitler was convicted for conduct committed prior to the effective date of the Sentencing Guidelines