Opinion
No. 19-55491
04-30-2021
MICHAEL FIORITO, Petitioner-Appellant, v. CYNTHIA ENTZEL, Respondent-Appellee.
NOT FOR PUBLICATION
D.C. No. 5:17-cv-02158-JFW-KES MEMORANDUM Appeal from the United States District Court for the Central District of California
John F. Walter, District Judge, Presiding Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Federal prisoner Michael Fiorito 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. Reviewing de novo, see Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011), we affirm.
Fiorito contends that the Bureau of Prisons ("BOP") violated his right to due process by designating him a violent offender and increasing his custody score, which resulted in his classification as a medium-security inmate. This contention is not cognizable in a habeas petition. This court has already determined that Fiorito's transfer from a low-security to a medium-security prison did not subject him to greater restrictions of his liberty sufficient to invoke habeas jurisdiction. See Fiorito v. Entzel, 829 F. App'x 192 (9th Cir. 2020) (citing Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989)). None of Fiorito's allegations in these proceedings supports a different conclusion.
Fiorito's allegation that the BOP violated the "Accardi doctrine" fares no better. Insofar as Fiorito argues that the BOP failed to follow its program statements, "[a] habeas claim cannot be sustained based solely upon the BOP's purported violation of its own program statement because noncompliance with a BOP program statement is not a violation of federal law." Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011). To the extent Fiorito alleges violations of federal law independent of the BOP's alleged non-compliance with its program statements, his allegations are not supported by the record.
We do not reach Fiorito's assertion that the First Step Act imposes due process requirements on the BOP because he did not develop this argument. See United States v. Williamson, 439 F.3d 1125, 1138 (9th Cir. 2006).
Finally, the district court did not err by denying Fiorito's motions to strike the government's answer and for summary judgment.
AFFIRMED.