The panel unanimously concludes this case is suitable for decision without oral… v. Rafael Zuniga

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 17-15466
D.C. No. 1:16-cv-01354-LJO
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Federal prisoner Jose Torres-Hurtado appeals pro se from the district court’s
judgment dismissing his 28 U.S.C. § 2241 habeas corpus petition. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo the dismissal of a section
2241 petition, see Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011),
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
JOSE TORRES-HURTADO,
Petitioner - Appellant,
v.
RAFAEL ZUNIGA,
Respondent - Appellee.
FILED
DEC 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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and we affirm.
Torres-Hurtado’s section 2241 petition alleged that the Bureau of Prisons
(“BOP”) failed to effectuate the district court’s decision to run his 240-month
sentence concurrent to a 77-month sentence imposed three years earlier. As noted
by the district court, Torres-Hurtado unsuccessfully raised this argument in a
section 2241 petition filed in the Northern District of West Virginia. That court
denied his claim on the merits after concluding that the BOP correctly calculated
Torres-Hurtado’s sentence. Torres-Hurtado’s second section 2241 petition raising
this claim was dismissed as successive and an abuse of the writ.
In light of this record, the district court correctly concluded that the instant
section 2241 petition is barred by 28 U.S.C. § 2244(a) and the abuse of the writ
doctrine. See 28 U.S.C. § 2244(a); Alaimalo, 645 F.3d at 1049 (abuse of the writ
doctrine “generally forbids the reconsideration of claims that were or could have
been raised in a prior habeas petition” (internal quotation marks omitted)).
Furthermore, Torres-Hurtado has not shown cause for bringing a successive
petition, or that a fundamental miscarriage of justice will result from the failure to
entertain his claim. See McCleskey v. Zant, 499 U.S. 467, 494-95 (1991).
AFFIRMED.
2 17-15466

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