Unpublished Disposition, 915 F.2d 1581 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 915 F.2d 1581 (9th Cir. 1990)

Timothy E. DESS, Petitioner-Appellant,v.EIGHTH JUDICIAL DISTRICT COURT, CASCADE COUNTY, STATE OFMONTANA, Respondent-Appellee.

No. 90-35073.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 4, 1990.* Decided Oct. 11, 1990.

Before SKOPIL, O'SCANNLAIN and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Timothy E. Dess appeals from the district court's denial of his petition for a writ of habeas corpus. This court has subject matter jurisdiction under 28 U.S.C. §§ 2253-54 (1988). Denials of habeas corpus are reviewed de novo, Butcher v. Marquez, 758 F.2d 373 (9th Cir. 1985), although state court findings of fact are presumed correct unless clearly erroneous, Marshall v. Lonberger, 459 U.S. 422, 431, 434-35 (1983). We now affirm.

* Appellant was arrested and charged with stealing two ten-speed bicycles. Pending trial, the state court released him on his own recognizance. Two days later, appellant was again arrested and charged on an unrelated count of forgery, jailed for one day, and released on bond. After conviction on both counts, appellant received a sentence for the forgery offense of fifteen years with credit for time served and a sentence for the felony theft of five consecutive years without mention of credit for time served. Appellant does not contest the credit he has received for jail time. Rather, he claims that the United States Constitution requires that he receive credit for the 424 days he spent "on his own recognizance" pending his trial, sentencing, and appeal. A claim of unconstitutional deprivation of credit against a term of imprisonment is a cognizable habeas corpus claim. Preiser v. Rodriguez, 411 U.S. 475, 487 (1973).

Appellant raises two arguments in support of his contention. First, he claims that the Montana Jail Time Credit Statute vests in him a liberty interest in credit for time spent on his own recognizance and that denial of that credit violates the fourteenth amendment. Second, he claims that denial of this credit subjects him to multiple punishment for the same offense in violation of the double jeopardy clause of the fifth amendment as applied to the states through the fourteenth amendment. Both claims are meritless.

II

The Montana Jail Time Credit Statute, upon which appellant relies, provides in pertinent part that " [a]ny person incarcerated on a bailable offense and against whom a judgment of imprisonment is rendered shall be allowed credit for each day of incarceration prior to or after conviction...." Mont. Code Ann. Sec. 46-18-403(1) (1989) (emphasis added). By its plain terms and under the interpretation rendered by the Montana courts,1  this provision does not provide credit for time spent while one is released on one's own recognizance. Because the statute grants no such credit, it follows a fortiori that appellant can have no liberty interest in such credit. Release on one's own recognizance and incarceration are not synonymous.

In keeping with this court's policy of liberally construing pro se claims, we assume that appellant means to argue not only that he has been denied a statutorily created liberty interest--the argument we have just rejected--but also that the Constitution requires that the State of Montana grant him credit for time spent on his own recognizance: " [l]iberty interests protected by the Fourteenth Amendment may arise from two sources--the Due Process Clause itself and the laws of the States." Hewitt v. Helms, 459 U.S. 460, 466 (1983) (citation omitted). This too we must reject. In a case involving much more restrictive conditions on freedom than were imposed by the state court here, the United States Supreme Court held that pretrial detention is not an unconstitutional denial of a defendant's liberty interest. United States v. Salerno, 481 U.S. 739 (1987). The restrictions placed upon appellant's freedom in this case,2  while not trivial, hardly compare to those imposed on Salerno.

III

The conditions upon which appellant was released pending trial, sentencing, and appeal were intended to ensure, and had the effect of ensuring, that appellant would appear before the court; they were in no sense punitive. Accord Salerno, 481 U.S. at 747. Even assuming for the sake of argument that those conditions were punitive, however, appellant would still have no claim that he has suffered twice for the same offense. If anything, he would have a claim only for excessive sentencing. Such a claim, if legitimate, would be redressable under the due process clause, not the double jeopardy clause. We have already noted, however, that the restrictions placed upon appellant's release did not constitute denial of a liberty interest cognizable under that clause.

IV

Because we find that appellant has not been twice punished and because we find that he has not been unconstitutionally denied his liberty, we affirm the district court's denial of his petition.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit R. 36-3

 1

The Montana statutes provide for credit in jail time served ... but there is no comparable statutory credit for time served on bail or on recognizance pending trial or appeal. Time spent on bail or recognizance cannot be counted for double jeopardy purposes either, as it is not punishment but rather a matter of court supervision

Dess v. Eighth Judicial Dist. Ct., No. 89-063 (Mont. Mar. 23, 1989) (dicta in order denying petition as time-barred) (citation omitted).

 2

Appellant was ordered: (a) not to leave Cascade County without the written permission of the court, (b) to maintain contact with his attorney by checking in three times per week, and (c) to appear at all regularly scheduled hearings in his case. Order Releasing Defendant on Own Recognizance, No. (C)DC-82-135a (Mont.Dist.Ct. Nov. 23, 1982)