Patrick O. Evans, Petitioner-appellant, v. Mark A. Henry, Warden; Federal Bureau of Prisons; Unitedstates Department of Justice, Respondents-appellees, 70 F.3d 1278 (9th Cir. 1995)

MEMORANDUM^** 

Federal prisoner Patrick O. Evans appeals pro se the district court's denial of his habeas corpus petition brought under 28 U.S.C. § 2241. Evans contends that the district court erred by finding that he was not entitled to presentence sentence credits for time Evans spent in a hospital and under home confinement. We have jurisdiction under 28 U.S.C. §§ 2253, 1291. We review de novo, Grady v. Crabtree, 958 F.2d 874, 874 (9th Cir. 1992) (per curiam), and vacate and remand.

In the district court Evans claimed that, during the time he was in the hospital and under house arrest, he was in the "constructive custody of the ... Bureau of Prisons and the U.S. Marshal's Service." Because the district court did not have the benefit of Reno v. Koray, 115 S. Ct. 2021 (1995) before dismissing Evans's claim, we remand for further consideration in light of that opinion. The record does not show, for example, whether Evans was in the hospital or at home under a detention or release order. See id. at 2026-27, 2029.

Finally, we decline to reach the merits of Evans's claims raised for the first time on appeal.

VACATED and REMANDED.