Daniel Martinez v. Catricia Howard

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL MARTINEZ,
Petitioner-Appellant,
v.
CATRICIA HOWARD,
Respondent-Appellee.
No. 22-16988
D.C. No. 4:21-cv-00230-RM
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Rosemary Márquez, District Judge, Presiding
Submitted November 14, 2023**
Before: SILVERMAN, WARDLAW, and TALLMAN, Circuit Judges.
Federal prisoner Daniel Martinez appeals pro se from the district court’s
judgment denying his 28 U.S.C. § 2241 habeas petition. We have jurisdiction
under 28 U.S.C. § 1291. Reviewing de novo, see Schleining v. Thomas, 642 F.3d
1242, 1246 (9th Cir. 2011), we affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
NOV 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 22-16988
Martinez contends that the district court erred in concluding that the Bureau
of Prisons (“BOP”) properly calculated how much credit from his state custody
could be applied to his federal sentence. He maintains that the BOP’s failure to
credit him for time spent in state custody from April 2, 2013, when he was
sentenced in Los Angeles Superior Court, through March 19, 2015, when he was
sentenced in federal court, violates his federal judgment, 18 U.S.C. § 3584, and
cases analyzing § 3584. However, Martinez’s federal judgment explicitly states
that his federal sentence was to be concurrent with the “undischarged prison term
imposed” on his state conviction. Further, because Martinez received state custody
credit for the time between his two sentencings, the BOP properly excluded it
when calculating Martinez’s sentence. See 18 U.S.C. § 3585(b); Schleining, 642
F.3d at 1245 n.2 (explaining that, under § 3585(b), the BOP can grant a federal
prisoner credit for time spent in custody before imposition of his federal sentence
only if that time has not been credited against another sentence). Under these
circumstances, § 3584 and the cases Martinez cites do not apply.
We do not consider Martinez’s remaining arguments, which he made for the
first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Martinez’s request for judicial notice is denied.
AFFIRMED.

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