                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                    UNITED STATES COURT OF APPEALS January 17, 2008

                                 TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                     Clerk of Court


 FRANK O’BRYAN,

               Petitioner - Appellant,                   No. 07-1328
          v.                                             (D. Colorado)
 R. WILEY, Warden,                              (D.C. No. 07-cv-01170-ZLW)

               Respondent - Appellee.


                            ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Frank O’Bryan, a federal prisoner proceeding pro se, appeals the district

court’s denial of his 28 U.S.C. § 2241 petition. In his § 2241 petition, O’Bryan

alleged the respondent warden had miscalculated his sentence by failing to give


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
him credit for time served prior to the imposition of his instant sentence for

witness tampering. 1 The district court determined O’Bryan was not entitled, as a

matter of law, to time-served credit because the time he served in custody prior to

the imposition of the instant sentence was credited against previous sentences.

18 U.S.C. § 3585(b) (providing that a defendant shall not be given credit for prior

custody if that prior custody was credited against another sentence); see also

United States v. Wilson, 503 U.S. 329, 337 (1992) (“Congress made clear [in

enacting § 3585(b)] that a defendant could not receive a double credit for his

detention time.”). The district court’s resolution of O’Bryan’s § 2241 petition is

undeniably correct. Accordingly, exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, 2 we AFFIRM. O’Bryan’s request to proceed on appeal in forma pauperis

is DENIED.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




      1
       O’Bryan’s sentence for witness tampering was ordered to be served
consecutively to sentences he was then serving for violations of conditions of his
supervised release.
      2
       Because O’Bryan is a federal prisoner, he need not obtain a certificate of
appealability before appealing the denial of his § 2241 petition. McIntosh v.
United States Parole Comm’n, 115 F.3d 809, 810 n.1 (10th Cir. 1997).

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