815 F2d 76 Dixon v. Meese R Fci Wf Fci Mg Fci

815 F.2d 76

William Travis DIXON, Petitioner-Appellant,
v.
Edwin MEESE, Attorney General of United States of America;
Bill R. Story, Warden, FCI, Ashland, Kentucky; W.F. Peters,
Administrative Services Manager (ASM), FCI, Ashland,
Kentucky; M.G. Sosa, Administrative Services Supervisor,
FCI, Ashland, Kentucky, Respondents-Appellees.

No. 86-5885.

United States Court of Appeals, Sixth Circuit.

Feb. 3, 1987.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before LIVELY, Chief Judge, and JONES and GUY, Circuit Judges.

ORDER


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1

This matter is before the Court upon consideration of petitioner's appeal from the district court's order denying his petition for a writ of mandamus. In addition, he moves this Court for in forma pauperis status on appeal. The matter has been referred to a panel of this Court pursuant to Rule 9, Rules of the Sixth Circuit. Upon examination of the certified record and the documents filed in support thereof, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

2

Petitioner seeks credit on his federal sentence for time spent in pretrial state custody for a state offense, during which time a federal parole violator warrant was lodged against him, but not executed until he was released on pretrial bail. Having determined that petitioner received credit for the period in question, the district court denied the petition for lack of controversy. Petitioner appealed.

3

Upon consideration this Court concludes that the district court properly denied the petition because petitioner has already received "street time" credit for the period of time he was "in custody". To recredit this period of time would improperly result in his receiving dual credit. See Doyle v. Elsea, 658 F.2d 512 (7th Cir.1981) (per curiam ); McIntyre v. United States, 508 F.2d 403 (8th Cir.) (per curiam ), cert. denied, 422 U.S. 1010 (1975). Therefore, until such time as petitioner's "street time" is revoked, the issue of whether he is entitled to credit on his federal sentence solely for the time spent in state custody is premature.

4

It is therefore ORDERED that the district court's order be and hereby is affirmed. Rule 9(d)(3), Rules of the Sixth Circuit. It is further ORDERED that petitioner's motion for in forma pauperis status, already granted by the district court, be and hereby is denied as moot.