OpenJurist

919 F2d 144 Hays v. Je Sams

919 F.2d 144

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

James D. HAYS, Petitioner-Appellant,
v.
J.E. SAMS, Respondent-Appellee.

No. 89-55179.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 16, 1990.*
Decided Nov. 20, 1990.

Before FLETCHER, WIGGINS and RYMER, Circuit Judges.

1

MEMORANDUM**

2

James Hays, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. Sec. 2241 habeas corpus petition. Hays contends that his federal sentence expired while serving his state sentence on unrelated charges. We have jurisdiction pursuant to 28 U.S.C. Sec. 2253, and we affirm.

3

We review de novo a district court's denial of a petition for writ of habeas corpus under 28 U.S.C. Sec. 2241. Vermouth v. Corrothers, 827 F.2d 599, 601 (9th Cir.1987).

4

In September 1974, Hays was sentenced to 10 years federal imprisonment for bank robbery. He was paroled from federal custody on April 17, 1978 and while on parole, was convicted in state court of multiple counts of attempted murder and robbery. Hays was sentenced on November 6, 1981 to 14 years and 4 months in state custody. The Parole Commission subsequently lodged a parole violator warrant, and held a parole revocation hearing. The Parole Commission revoked Hays's parole, denied him credit for the time he spent on parole, and determined that Hays would serve the remainder of his federal sentence upon release from state custody. After exhausting administrative remedies, Hays filed his section 2241 petition, which the district court denied.

5

Hays contends that his unexpired federal sentence and his state sentence should have run concurrently and therefore, his federal sentence expired while he was in state custody. The Parole Commission's "Notice of Action," however, clearly states that "[t]he unexpired portion of your federal sentence shall commence upon your release from state custody or upon federal reparole to your state sentence, whichever comes first." If Hays is arguing that he should receive credit against his federal sentence for the time served in state prison on the unrelated state charge, his argument fails. See Raines v. United States Parole Comm'n, 829 F.2d 840, 843 (9th Cir.1987) (per curiam).

6

Hays also argues, for the first time on appeal, that the Parole Commission improperly denied him credit for the time he spent on parole because the law at the time he was sentenced in 1974 allowed credit for time served on parole. He claims that the application of any other law violates the ex post facto clause. We decline to consider this claim because Hays had not exhausted his administrative remedies. See Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir.1986). Finally, Hays's claim regarding an error in the Bureau of Prisons printout is also raised for the first time on appeal and because it presents a question of fact, we decline to address it. See Telco Leasing, Inc. v. Transwestern Title Co., 630 F.2d 691, 693 (9th Cir.1980).

7

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.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 9th Cir.R. 36-3