923 F2d 862 Maulding v. H Rison

923 F.2d 862

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Timothy A. MAULDING, Petitioner-Appellant,
v.
Richard H. RISON, Warden, Respondent-Appellee.

No. 90-55586.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 23, 1991.*
Decided Jan. 25, 1991.

Before ALARCON, CYNTHIA HOLCOMB HALL and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Timothy A. Maulding, a federal prisoner, appeals pro se the district court's order denying his petition for habeas corpus under 28 U.S.C. Sec. 2241. Maulding contends that the United States Bureau of Prisons improperly calculated the length of his sentence, denied him credit for time spent in state custody, and denied him good time awards for time spent in state custody. We have jurisdiction under 28 U.S.C. Sec. 2253, and we affirm.1

I. Length of Sentence

3

Maulding received four federal sentences: (1) four years imprisonment for conspiracy to manufacture a controlled substance, (2) three years imprisonment for bail jumping, (3) ten years imprisonment for bank robbery, and (4) one year imprisonment for a probation violation, to run concurrently to the first sentence. He contends that his third federal sentence must run concurrently to his first federal sentence, for a total federal term of thirteen years, rather than seventeen years, because the sentencing judge designated the third sentence as consecutive to the second, and the second sentence as consecutive to the first, but was silent as to the relation between the third and first sentences. Unless the sentencing judge specifies that sentences shall be served consecutively, they are served concurrently. United States v. Wingender, 711 F.2d 869, 870 (9th Cir.1983). Here, the only logical interpretation of the sentencing court's designations is that the three sentences must run consecutively. Maulding's contention therefore lacks merit.

II. Credit for Time Spent in State Custody

4

While awaiting trial on state charges, Maulding was prosecuted on the federal charges under a federal writ of habeas corpus ad prosequendum. After receiving his federal sentences, he was convicted on the state charges and served state sentences. He was then paroled to federal custody on June 6, 1988, to serve his federal sentences. Maulding contends that he is entitled to credit on his federal term for time spent in state custody because it was "legally impossible" for the federal term to be consecutive to a state sentence not yet imposed. "[T]here is no statutory provision that accords a prisoner credit for time served in a state prison on a state charge." Raines v. U.S. Parole Comm'n, 829 F.2d 840, 843 (9th Cir.1987) (per curiam); see 18 U.S.C. Sec. 3568 (federal sentence does not begin to run until defendant is received in federal custody); United States v. Warren, 610 F.2d 680, 685 n. 9 (9th Cir.1980) (same). Accordingly, Maulding's contention lacks merit.

5

Maulding also contends that this court is bound by earlier habeas corpus proceedings, in which both state and federal courts found that his state and federal sentences were concurrent. The Texas state court and the district court for the Northern District of Texas both noted that Maulding claimed he was serving his sentences concurrently but did not resolve this claim. Accordingly, the district court did not err by denying Maulding credit for time spent in state custody.

6

III. Good Time Awards for Time Spent in State Custody

7

Maulding contends that he is entitled to good time credit for time spent in state custody. A prisoner may earn extra good time while serving concurrent federal and state sentences at a state facility. 18 U.S.C. Sec. 4162. Here, as discussed above, Maulding's federal and state sentences did not run concurrently. His contention therefore lacks merit.

8

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 Circuit R. 36-3

1

Maulding's motion for reconsideration of this court's order denying his motion for release on bail pending appeal is denied as moot