FITCH v. JOHNSON (2018)

MEMORANDUM **

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 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, 112 S.Ct. 1351, 117 L.Ed.2d 593 (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 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.