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Katz v. Sivley

filed*fn*: July 10, 1991.

DENNIS RALPH KATZ, PETITIONER-APPELLANT,
v.
J. L. SIVLEY, WARDEN, RESPONDENT-APPELLEE



Appeal from the United States District Court for the District of Arizona; Richard M. Bilby, Chief District Judge, Presiding; D.C. No. CV-89-0557-TUC-RM.

Tang, D.w. Nelson and Canby, Circuit Judges.

MEMORANDUM

Dennis Ralph Katz, a federal prisoner, appeals pro se the district court's dismissal of his habeas corpus petition brought pursuant to 28 U.S.C. § 2241. Katz claims the Bureau of Prisons improperly denied him credit for time he served in a Norwegian jail. We affirm.

I

In 1971, Katz was convicted of two offenses related to the unlawful transportation and sale of marijuana. After the district court sentenced Katz, he escaped. Thirteen years later, Norwegian authorities arrested Katz on drug charges unrelated to those for which he was convicted in the United States. On November 22, 1984, he was sentenced to a forty-two month term of confinement in Norway. Katz's subsequent incarceration was temporarily interrupted by another escape. Following his recapture, the United States renewed earlier efforts to take custody of Katz based on the 1971 convictions. The U.S. government filed its extradition request with Norway in early 1986. Almost two years later, on December 23, 1987, Norway deported Katz to the United States.

Katz fully served his Norwegian sentence on November 15, 1987; he has received credit on his federal sentence for time spent in Norwegian jails after this date. In support of his effort to obtain federal credit for additional time served in Norway, Katz has introduced evidence indicating that he was made to serve part of his Norwegian sentence solely because of the extradition request by the United States. Katz contends that, but for the the pending extradition proceedings, Norway would have released him from prison after he had served seven-twelfths or, at most, two-thirds of his sentence. Katz thus seeks federal credit for time served after the seven-twelfths point of his Norwegian prison term.

II

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

The relevant statute provides in pertinent part as follows:

%The Attorney General shall give any [person convicted of an offense] credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.

Bail Reform Act of 1966, Pub. L. No. 89-465, § 4, 80 Stat. 214, 217 (formerly codified at 18 U.S.C. § 3568) (hereinafter, "section 3568"), repealed in part by Sentencing Reform Act of 1984, Pub. L. No. 98-473, § 212(a)(2), 98 Stat. 1987, 1987, and reprinted in 18 U.S.C.A. §§ 3331-4120, at 65 (West Supp. 1991).*fn1 For purposes of implementing this statute, the Bureau of Prisons has promulgated Program Statement No. 5880.24 (Sept. 5, 1979). We must accord substantial deference to the interpretation of section 3568 rendered by the Bureau of Prisons; we will accept the Bureau's interpretation so long as it is reasonable. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990).

Katz contends the Bureau of Prison's program statement dictates that he receive credit for time served in Norway after the seven-twelfths point of his sentence. Specifically, he points to section 5(c)(1)(a) of the program statement, which states: "Credit will be given for all time spent in non-federal or foreign custody when the underlying basis for custody in fact is a federal warrant." This provision is of no assistance to Katz, however, because it pertains to "non-federal custody . . . base[d] on charges that later resulted in a federal sentence." Program Statement No. 5880.24 § 5(c)(1). The charges on which Katz was convicted in Norway are unrelated to those for which he was convicted in the United States. Section 5(c)(1) is also inapplicable because it pertains to time spent in custody prior to a conviction. Compare id. § 5(c)(1)(b) (indicating subsection (c)(1) concerns presentence custody) with id. § 5(b)(2) (stating no credit will be given for time spent serving another sentence). There is no question here that the Norwegian jail time for which Katz seeks credit was part of an operative sentence imposed following a Norwegian conviction.

The portion of the program statement that controls Katz's situation states: "Jail time credit will not be given for any portion of time spent serving another sentence, either federal or non-federal, except that time spent serving a sentence that is vacated. . . ." Program Statement No. 5880.24 § 5(b)(2) (emphasis added). There is no question here that Katz's Norwegian sentence has never been vacated. Therefore, under the Bureau of Prison's program statement, Katz is not entitled to credit for time spent serving his Norwegian sentence. Cf. Alexander v. Perrill, 916 F.2d 1392, 1394 (9th Cir. 1990) (noting that federal prisoner received credit from sentencing court for time served on a vacated German conviction).*fn2

Katz also argues the Bureau of Prison's interpretation of section 3568 is unreasonable. We disagree. The Bureau's program statement is reasonable, particularly when viewed in light of Congress's intent to provide credit only for time served prior to a conviction. See H.R. Rep. No. 1541, 89th Cong., 2d Sess. (purpose of amendment establishing section 3568 in its present form is to "assure that persons convicted of crimes will receive credit for time spent in custody prior to trial " (emphasis added)), reprinted in 1966 U.S. ...


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