
    Anthony Lenaire CURRY, Petitioner—Appellant, v. Joan PALMATEER, Superintendent, Oregon State Penitentiary, Respondent—Appellee.
    No. 01-35949.
    D.C. No. CV-99-00616-CO.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Nov. 6, 2002.
    Decided Jan. 2, 2003.
    
      Before REAVLEY, KOZINSKI and W. FLETCHER, Circuit Judges.
    
      
       Honorable Thomas M. Reavley, Senior United States Circuit Judge for the Fifth Circuit, sitting by designation.
    
   MEMORANDUM

Even if the district court erred in finding procedural default (which we do not decide), we nonetheless affirm on the merits because the 1995 amendment to Oregon Revised Statutes (O.R.S.) § 137.370 merely codified pre-existing Oregon case law, which clearly held that O.R.S. § 137.370(2)(a) does not authorize credit for pre-sentence time served on an unrelated sentence. See Chambers v. Maass, 92 Or.App. 283, 758 P.2d 393, 393-94 (1988). The petitioner’s attempt to distinguish Chambers on the ground that it involved consecutive sentences is unavailing; Chambers did not turn on whether the sentences were consecutive, but on whether the “time spent in custody [was] the result of the [instant] charge.” Id. at 393 (internal quotation marks omitted). See also Nissel v. Pearce, 307 Or. 102, 764 P.2d 224 (1988); Randolph v. Oregon Dept. of Corr., 139 Or.App. 79, 910 P.2d 1171 (1996). Chamber’s sentences, like Curry’s sentences here, simply fit within that general rule.

AFFIRMED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     