Unpublished Disposition, 848 F.2d 1242 (9th Cir. 1994)

MEMORANDUM^** 

Paul Felix Jechura, a federal prisoner, appeals pro se the district court's order denying his petition for habeas corpus relief under 28 U.S.C. § 2241. Jechura contends that the Bureau of Prisons incorrectly calculated the amount of jail credit to which he is entitled. Specifically, Jechura argues that he was entitled to the time spent in custody between the imposition of sentencing in two criminal cases.

FACTS

On February 16, 1983, Jechura was arrested in California on a federal indictment from the eastern district of Michigan. He was transferred to Michigan to await trial on charges of operating a continuing criminal enterprise. Report and Recommendation of Magistrate at 3-4. While the Michigan charges were still pending, Jechura was indicted on federal narcotics charges in Alabama. Id. On July 16, 1983, he was transferred to Alabama to stand trial on these charges. Id. He pleaded guilty to two counts, and on September 16, 1983, was sentenced to ten years incarceration. Id. He was then returned to Michigan, where he pleaded guilty to one count of operating a continuing criminal enterprise. The district court in Michigan sentenced Jechura to ten years incarceration, to run concurrently with the Alabama sentence. Id.

The Bureau of Prisons awarded Jechura jail credit from February 16, 1983 to September 15, 1983, the day he began to serve his Alabama sentence. See Appellee's Response to Motion for Summary Judgment (Declaration of Robert J. Palmquist). In accordance with the Bureau of Prisons Policy Statement 5880.20, the total length of Jechura's sentence was determined by adding the length of the Alabama ten-year concurrent sentence. Id. The overlap was determined to equal 5 months and 7 days, that is, the additional time between the ending of the first sentence (September 15, 1993) and the ending of the second sentence (February 22, 1994). Id. Jechura's total sentence was 10 years, 5 months and 7 days. Id.

Jechura filed a section 2241 petition for writ of habeas corpus on June 11, 1985. The district court ordered the case transferred to the Eastern District of Michigan, but this court, in a writ of mandamus, directed the district court to transfer the case to the Central District of California. Jechura v. Young, No. 85-2726. Jechura alleged that his conviction in Alabama was in connection with his Michigan conviction, and, therefore, he was entitled to credit against his Michigan sentence for the time he spent in Alabama. See Brief in Support of Petition for Writ of Habeas Corpus. The magistrate recommended the district court deny the petition on the grounds that the Bureau of Prison's Program Statement 5880.24 "prohibits jail credit if the offender is presently serving another sentence" and that the sentences were not related for purposes of 18 U.S.C. § 3568. See Report and Recommendation of Magistrate; Supplemental Report and Recommendation of Magistrate. The district court adopted the magistrate's findings and conclusion, and denied the petition. See Order Adopting Reports and Recommendations of Magistrate. Jechura timely appeals.

Although Jechura is correct in noting that he is entitled to credit for any time spent in jail awaiting sentencing in Michigan, he fails to consider the supervening Alabama conviction. The Bureau of Prison's Program Statement specifically excludes time spent in custody "when failure to make bail due to indigency is a moot point." Because Jechura was sentenced in Alabama, he was no longer in custody solely pursuant to the Michigan arrest. He would have remained in custody because of his Alabama sentence regardless of whether he was financially able to make bail on the Michigan charge. Accordingly, Jechura is not entitled to credit under the Bureau of Prisons Program Statement.

Jechura argues that the offenses in Michigan and Alabama were sufficiently related to entitle him to sentence credit under 18 U.S.C. § 3568. Appellant's Brief at 11-12. Jechura points out that the U.S. Attorney wrote a letter to the Michigan sentencing judge indicating that "the defendant has been convicted in the Southern District of Alabama in connection with marijuana importation which was related to the charged conspiracy." Appellant's Brief at 11; Exh.B. Jechura also notes that his Alabama conviction was for a lesser-included offense of his Michigan conspiracy conviction. Appellant's Reply Brief at 8-10.

The original intent in creating section 3568 was to provide credit for pretrial and trial custody. See H.R.Rep. No. 2058, 86th Cong., 2d Sess. 1 (1960). Congress intended to exclude granting credit "for time spent in custody after sentencing." Id. " [O]nce a sentence is imposed and becomes operative for a period of time at issue, it is artificial to maintain that custody nonetheless retains its preconviction charter, that it remains conditional, unsettled, still dependent upon (and therefore "in connection with") a trial court's eventual disposition of other charges not yet adjudicated." Shelvy v. Whitfield, 718 F.2d 441, 444 (D.C. Cir. 1983). Section 3569 does not apply to the time Jechura spent in jail after his first conviction. Jechura is asking the second sentencing court to give credit not for custodial time but for time served on another conviction. Section 569 does not aid him.

Accordingly, because Jechura was convicted and sentenced in Alabama, and because he has failed to show that the conviction was "in connection" with the second conviction, the district court did not err in ruling that Jechura was not entitled to credit once he began serving his Alabama sentence.

AFFIRMED.