Zaring v. Wiley, No. 11-1036 (10th Cir. 2011)

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In 2003, Petitioner Jeffrey Zaring was arrested in Utah three times on drug charges. In 2004, the US Attorney's office filed a petition for a writ of habeas corpus ad presequendum to arraign Petitioner on federal drug charges. Through the writ issues, Petitioner remained physically housed in a county jail. In order to try Petitioner on the state charges, Utah issued its own writ of habeas corpus ad presequendum later that year. Petitioner was sentenced in state court to a term of one to fifteen years, with the sentence to run concurrently with any sentence imposed for the pending federal charges. In 2005, Petitioner pled guilty to federal drug charges and was sentenced to 121 months' imprisonment to run concurrently with his state sentence. Petitioner was returned to state custody, and finished his state sentence. He received credit against his state sentence for the time he spent in a local county jail. Once his state sentence was complete, Petitioner was transferred to federal custody. After transfer, and after exhausting his administrative remedies, Petitioner unsuccessfully petitioned the district court seeking credit against his federal sentence for his pre-trial detention. Upon consideration of Petitioner's sentences, the Tenth Circuit found that Petitioner was not entitled to apply the pre-detention credit twice. The Court affirmed the district court's decision.

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FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS TENTH CIRCUIT June 13, 2011 Elisabeth A. Shumaker Clerk of Court JEFFREY MARK ZARING, Petitioner Appellant, v. BLAKE DAVIS,* Warden, Federal Prison Camp Florence, No. 11-1036 (D.C. No. 1:09-CV-00689-PAB-BNB) (D. Colo.) Respondent Appellee. ORDER AND JUDGMENT** Before LUCERO, EBEL, and GORSUCH, Circuit Judges. Jeffrey Zaring, a federal prisoner proceeding pro se, appeals the denial of his 28 U.S.C. § 2241 petition. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. * Pursuant to Fed. R. App. P. 43(c)(2), Davis is substituted for former warden Ron Wiley. ** The case is unanimously ordered submitted without oral argument pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1. I Zaring was arrested in Utah on state charges in mid-November 2003. He posted bond a week later. On December 8, 2003, state law enforcement arrested Zaring a second time. The state charges relating to the second arrest were later dismissed in favor of federal charges stemming from the same incident. Zaring was released the following day, but arrested a third time on December 11 on additional state drug charges. Following this third arrest, Zaring was held in Davis County jail. On February 11, 2004, the United States Attorney s office filed a petition for writ of habeas corpus ad prosequendum to arraign Zaring on federal drug charges. Although the writ issued, Zaring remained physically housed in the county jail. In order to try Zaring on the state charges, the State of Utah issued its own writ of habeas corpus ad prosequendum on August 12, 2004. Zaring was sentenced in state court on November 23, 2004, to a term of one to fifteen years, with the sentence to run concurrently with any sentence imposed for the pending federal charges. On May 16, 2005, Zaring pled guilty to federal drug charges and was sentenced to 121 months imprisonment, to run concurrently with his state sentence. He was returned to state custody on May 23, 2005. Zaring was transferred to the Utah State Prison on June 3, 2005, where he served the remainder of his state sentence. He received credit against his state sentence for the entire time he spent in Davis County jail. On February 7, 2006, Zaring completed his state sentence and was transferred to federal custody. After the transfer, and after exhausting his administrative remedies, Zaring filed a -2- § 2241 petition arguing that he should receive credit against his federal sentence for his pre-trial detention. The district court denied relief. Zaring now appeals. II A federal prisoner is entitled to credit for pre-trial detention resulting from the offense for which the sentence was imposed or any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed, provided that the same period of time has not been credited against another sentence. 18 U.S.C. § 3585(b). Zaring s opening brief does not dispute the fact that he received credit against his state sentence for his period of pretrial detention.1 As the district court correctly held below, Zaring s arguments regarding the propriety of the state sentence credit are immaterial. Section 3585(b) is clear. If one sentence is reduced by a pre-trial detention credit, the credit cannot be applied against another sentence regardless of whether it was properly applied to the first sentence. Zaring s pretrial detention was credited against his state sentence and cannot also be credited against his federal sentence. In addition to the claim he advanced in his § 2241 petition, Zaring asserts two new arguments on appeal. He claims his federal sentence was impermissibly interrupted by his state sentence, and that his sentences were not truly concurrent despite the sentencing 1 His reply brief can be read as making such an argument. But arguments not made in the opening brief are abandoned. See City of Colo. Springs v. Solis, 589 F.3d 1121, 1135 n.5 (10th Cir. 2009). -3- orders of both the federal and state courts. But we generally do not review issues that were not advanced below. See Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007). This rule carries particular force when the new claims should have been administratively exhausted, and the record does not show that Zaring ever presented his new claims to prison officials. Accordingly, we will not consider them for the first time on appeal. III We AFFIRM the district court s denial of Zaring s § 2241 petition. We DISMISS Zaring s application for a certificate of appealability as moot. See McIntosh v. U.S. Parole Comm n, 115 F.3d 809, 810 n.1 (10th Cir. 1997). We GRANT his motion to proceed in forma pauperis. Entered for the Court Carlos F. Lucero Circuit Judge -4-

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