                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 07 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



GARMON COATS,                                    No. 09-15663

               Petitioner - Appellant,           D.C. No. 1:08-cv-00666-LJO

  v.

DAN SMITH,                                       MEMORANDUM *

               Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                            Submitted August 23, 2010 **

Before:        LEAVY, HAWKINS, and THOMAS, Circuit Judges.

       Garmon Coats appeals pro se from the district court’s judgment denying his

28 U.S.C. § 2241 petition. We have jurisdiction under 28 U.S.C. §§ 1291 and

2253, and we affirm.

       Coats contends the district court erred by denying his petition because he

          *
             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).
was entitled to credit toward his federal sentence for the time he spent in state

custody. This contention fails because the state maintained primary jurisdiction

over Coats when he appeared in federal court. See Taylor v. Reno, 164 F.3d 440,

445 (9th Cir. 1998). Coats was therefore not in federal custody for purposes of

commencing his federal sentence. See id.; see also Thomas v. Brewer, 923 F.2d

1361, 1366-67 (9th Cir. 1991) (state prisoner’s status does not change when

transferred to federal custody by writ of habeas corpus ad prosequendum).

Accordingly, the district court did not err by concluding that Coats was not entitled

to relief.

       AFFIRMED.




                                           2                                    09-15663
