Khelby Calmese v. S. Young ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KHELBY LAMAR CALMESE, No. 20-15155
Petitioner-Appellant, D.C. No. 1:19-cv-00798-LJO-SKO
v.
MEMORANDUM*
S. YOUNG,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted February 17, 2021**
Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.
Federal prisoner Khelby Lamar Calmese appeals pro se from the district
court’s judgment denying his 28 U.S.C. § 2241 habeas corpus petition. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo, see Thomas v. Brewer,
923 F.2d 1361, 1364 (9th Cir. 1991), and 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).
Calmese contends that he is entitled to credit towards his federal sentence
for the time period between March 2016 and April 2017. Although Calmese’s
earliest possible release date from state custody was March 25, 2016, the parole
board denied early release and required him to serve the maximum parole sentence
with a projected release date of June 22, 2017. Calmese, therefore, did not begin
serving his federal sentence until April 27, 2017, when he obtained early release
from his state sentence for good conduct. See 18 U.S.C. § 3585(a). The time
Calmese spent in federal custody pursuant to a writ of habeas corpus ad
prosequendum prior to that date did not interrupt the state’s primary jurisdiction
over him. See Schleining v. Thomas, 642 F.3d 1242, 1243 n.1 (9th Cir. 2011)
(temporary transfer of state prisoner to federal custody pursuant to a writ of habeas
corpus ad prosequendum does not interrupt the state’s primary jurisdiction over the
prisoner). Moreover, because Calmese received credit against his state parole
revocation sentence for this time period, he is not entitled to any additional federal
credit. See 18 U.S.C. § 3585(b); United States v. Wilson, 503 U.S. 329, 337 (1992)
(defendant may not “receive a double credit for his detention time”).
All pending motions are denied.
AFFIRMED.
2 20-15155