Raji Kitchen v. George Jaime

Filing 52

MEMORANDUM OPINION AND ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF APPEALABILITY by Magistrate Judge John E. McDermott. IT IS HEREBY ORDERED: (1) Respondent's Motion to Dismiss is GRANTED; (2) judgment shall be entered dismissing this action with prejudice; and (3) a certificate of appealability is DENIED. (es)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 8 9 10 11 RAJI KITCHEN, 12 Petitioner, 13 14 v. GEORGE JAIME, 15 Respondent. 16 17 18 ) ) ) ) ) ) ) ) ) ) ) Case No. CV 18-6514-JEM MEMORANDUM OPINION AND ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF APPEALABILITY INTRODUCTION On July 19, 2018, Raji Kitchen (“Petitioner”), a prisoner in state custody proceeding 19 pro se, constructively filed 1 a petition for writ of habeas corpus pursuant to 28 U.S.C. § 20 2254 (“Petition” or “Pet.”). 21 22 23 24 25 26 27 28 1 Under the prison “mailbox rule,” “a legal document is deemed filed on the date a petitioner delivers it to the prison authorities for filing by mail.” Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002); accord Houston v. Lack, 487 U.S. 266, 276 (1988). The “[mailbox] rule applies to prisoners filing habeas petitions in both federal and state courts.” Huizar v. Carey, 273 F.3d 1220, 1223 (9th Cir. 2001) (citation omitted). In the absence of evidence to the contrary, courts have treated a petition as delivered to prison authorities on the day the petition was signed. See Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). Here, the proof of service indicates that the Petition was delivered for mailing on July 19, 2018, and, therefore, the Court finds the Petition to have been constructively filed on this date. (Pet. at 65.) Unless indicated otherwise, regardless of whether Petitioner’s habeas corpus petitions were filed within the limitations period, see infra; Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (to benefit from the “mailbox rule” a petitioner must deliver the petition to prison officials within the limitations period), the Court will afford Petitioner the benefit of the mailbox rule. 1 On October 31, 2018, the Court issued an Order Granting Petitioner’s Motions for 2 Stay and Abeyance and Denying Respondent’s Motion to Dismiss. The Court stayed the 3 case pursuant to Rhines v. Weber, 544 U.S. 269, 277-78 (2005), while Petitioner sought to 4 exhaust state remedies. After the state proceedings concluded and the stay expired, 5 Petitioner constructively filed a First Amended Petition (“FAP”) on January 16, 2020. 6 7 On June 26, 2020, Respondent filed a Motion to Dismiss the FAP. Petitioner did not file an Opposition. The Motion to Dismiss is now ready for decision. 8 9 10 Pursuant to 28 U.S.C. § 636(c), both parties have consented to proceed before this Magistrate Judge. For the reasons set forth more fully below, the Court finds that the Motion to Dismiss should be granted, and this action should be dismissed with prejudice. 11 12 PROCEDURAL HISTORY I. PETITIONER’S CONVICTIONS 13 On February 9, 2017, in Los Angeles County Superior Court case number 14 TA142083, Petitioner pleaded no contest to one count of assault with a semiautomatic 15 firearm (Cal. Penal Code § 29800(a)(1)), one count of felon in possession of a firearm (Cal. 16 Penal Code § 29800(a)(1)), and one count of felon in possession of live ammunition (Cal. 17 Penal Code § 30305(a)(1)). Petitioner admitted the allegations that he personally used a 18 firearm in the commission of the crimes (Cal. Penal Code § 12022.5(a)), that he had three 19 prior serious and/or violent felony convictions (Cal. Penal Code §§ 667(a)-(j), 1170.12(b)), 20 and that he had served two prior prison terms (Cal. Penal Code § 667.5(b)). (Respondent’s 21 Lodged Document (“LD”) 1 at 7-10; LD 9 at 3-5.) Pursuant to an indicated sentence by the 22 court in the open plea, Petitioner was sentenced to a total state prison term of twelve years. 23 (LD 1 at 2, 10-13; LD 9 at 4-6.) The trial court stayed the firearm enhancement under Cal. 24 Penal Code § 654. (LD 1 at 11; LD 9 at 4.) Petitioner did not appeal the judg ment. (FAP 25 at 2.) 26 27 28 2 1 II. 2 STATE HABEAS PETITIONS FILED PRIOR TO FEDERAL PETITION On October 23, 2017, Petitioner constructively filed a habeas petition in the Los 3 Angeles County Superior Court (LD 2), which was denied in a reasoned decision on 4 November 8, 2017 (LD 3). 5 On December 7, 2017, Petitioner constructively filed a habeas petition in the Second 6 District of the California Court of Appeal (LD 4), which was denied in a reasoned decision 7 on December 21, 2017 (LD 5). 8 9 10 On February 5, 2018, Petitioner constructively filed a habeas petition in the California Supreme Court (LD 6), which was denied without comment on May 9, 2018 (LD 7). III. 11 THE FEDERAL HABEAS ACTION On July 19, 2018, Petitioner constructively filed the Petition in this action. (Dkt. 1.) 12 On September 28, 2018, Respondent filed a Motion to Dismiss on the grounds that all three 13 of the claims in the Petition were unexhausted. (Dkt. 10.) On October 18, 2018, Petitioner 14 filed a Motion for Stay and Abeyance. (Dkt. 12.) On October 31, 2018, the Court granted 15 Petitioner’s motion, denied Respondent’s motion, and stayed the Petition in its entirety 16 pursuant to Rhines v. Weber, 544 U.S. 269, 277-78 (2005). (Dkt. 13.) 17 IV. STATE HABEAS PETITIONS FILED AFTER STAY OF FEDERAL ACTION 18 On August 8, 2018, Petitioner constructively filed a second habeas petition in the Los 19 Angeles County Superior Court (LD 8), which was denied in a reasoned decision on August 20 28, 2018 (LD 9). 21 On November 29, 2018, Petitioner constructively filed a third habeas petition in the 22 Los Angeles County Superior Court (LD 10), which was denied as successive on December 23 12, 2018 (LD 11). 24 On April 11, 2019, Petitioner constructively filed a second petition in the Second 25 District of the California Court of Appeal (LD 13), which was denied on July 11, 2019 (LD 26 14). 27 28 Petitioner also filed state habeas petitions in other jurisdictions. On October 8, 2018, Petitioner constructively filed a habeas petition in the Kern County Superior Court (LD 15), 3 1 which was denied on January 9, 2019 (LD 16). On May 8, 2019, Petitioner filed a habeas 2 petition in the Fifth District of the California Court of Appeal (LD 17), which was denied on 3 August 15, 2019 (LD 18). 4 On September 11, 2019, Petitioner constructively filed a second habeas petition in 5 the California Supreme Court (LD 19), which was denied on December 11, 2019 (LD 20). 6 V. 7 EXPIRATION OF STAY AND FILING OF FIRST AMENDED FEDERAL PETITION The stay in this action expired on December 21, 2019. (Dkt. 26.) On January 16, 8 2020, Petitioner constructively file the FAP. (Dkt. 29.) On April 26, 2020, Petitioner f iled a 9 Supplemental Brief to the FAP (“Supp.”). (Dkt. 36.) 10 11 PETITIONER’S CLAIMS 1. The California Supreme Court violated Petitioner’s Fifth and Fourteenth 12 Amendment due process rights by not ordering the Superior Court to consider resentencing 13 him pursuant to California Senate Bill 620 (“SB 620"). (Pet. at 5; FAP at 5-6.) 2 14 2. The Superior Court violated Petitioner’s Fifth and Fourteenth Amendment 15 rights by failing to ensure that the California Department of Corrections and Rehabilitation 16 (“CDCR”) is properly interpreting the judgment, which has resulted in Petitioner being 17 disqualified him from parole consideration under California’s Proposition 57 and has limited 18 him to earning fifteen percent worktime credits. (Pet. at 5-6; FAP at 5-6.) 19 3. Petitioner’s rights under the Eighth Amendment and the Equal Protection 20 Clause were violated when the Superior Court used the same prior conviction to impose a 21 prior serious felony enhancement and a prior prison term enhancement in violation of Cal. 22 Penal Code § 654. (Pet. at 6; FAP at 6-7.) 23 24 25 26 27 2 28 The Court refers to the pages of the Petition and First Amended Petition as numbered by the CM/ECF system. 4 1 4. The CDCR violated Petitioner’s Fifth, Eighth, and Fourteenth Amendment 2 rights by limiting his credit-earning rate to fifteen percent based on the stayed firearm 3 enhancement. (FAP at 7-9; Supp. at 2-3.) 3 4 5 DISCUSSION I. RESPONDENT’S MOTION TO DISMISS GROUNDS ONE AND THREE AS 6 UNTIMELY SHOULD BE DENIED 7 A. 8 Grounds One and Three were included in both the Petition and the FAP. (Com pare 9 The Relation Back Doctrine Is Not Applicable Petition at 5-6 with FAP at 5-6.) Respondent argues that these claims are untimely 10 because the statute of limitations “expired prior to the filing of the [FAP] and the claims do 11 not relate back to the Original Petition.” (Motion to Dismiss at 4; see also id. at 11.) 12 Respondent’s argument regarding the applicability of the relation-back doctrine is without 13 merit. 14 The Petition was stayed in its entirety pursuant to Rhines, 544 U.S. at 277-78. (Dkt. 15 13 at 1.) When Petitioner filed his FAP, there was no need to apply the relation-back 16 doctrine to Grounds One and Three because they were still pending in this Court under the 17 Rhines stay while Petitioner attempted to exhaust his state remedies. See Pace v. 18 DiGuglielmo, 544 U.S. 408, 416 (2005) (holding that a state prisoner may file “a ‘protective 19 petition’ in federal court and ask[] the federal court to stay and abey the federal habeas 20 proceedings until state remedies are exhausted.”) (citing Rhines, 544 U.S. at 277); see also 21 King v. Ryan, 564 F.3d 1133, 1140 (9th Cir. 2009) (“W hen implemented, the Rhines 22 exception eliminates entirely any limitations issue with regard to the originally unexhausted 23 claims, as the claims remain pending in the federal court throughout.”); Galvan v. Allison, 24 2019 WL 4648499, at *7 (C.D. Cal. July 2, 2019) (“[T]here is no need to address whether 25 26 27 28 3 Although Petitioner describes this claim as two separate claims under Grounds Four and Five (FAP at 7-9), both claims are based on the same allegations. Accordingly, the Court considers them as a single claim. 5 1 [claims] relate back to the original Petition because they were timely filed and remained 2 pending in this Court under the Rhines stay while Petitioner exhausted them.”); Martinez v. 3 Peery, 2017 WL 6371371, at *12 (C.D. Cal. Nov. 13, 2017) (no need to apply relation back 4 doctrine to claim raised in timely original petition and included in a FAP because claim 5 remained pending under Rhines stay); Red v. Runnels, 2009 WL 4251562, at *5 (N.D. Cal. 6 Nov. 23, 2009) (“The Court concludes that when a petitioner seeks a stay of proceedings 7 under Rhines to exhaust unexhausted claims already contained in a timely federal petition, 8 the relation back doctrine will not create a statute of limitations problem for the petitioner 9 since the exhausted claims will, by definition, be identical to the claims already raised in the 10 11 12 existing petition.”). The relevant question, therefore, is whether the initial Petition was timely. If it was, then Grounds One and Three should not be dismissed. 13 B. 14 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “establishes a The Statute of Limitations 15 1-year period of limitation for a state prisoner to file a federal application for a writ of habeas 16 corpus.” Wall v. Kholi, 131 S. Ct. 1278, 1283 (2011); Lawrence v. Florida, 549 U.S. 327, 17 329 (2007); 28 U.S.C. § 2244(d)(1). After the one-year limitations period expires, the 18 prisoner’s “ability to challenge the lawfulness of [his] incarceration is permanently 19 foreclosed.” Lott v. Mueller, 304 F.3d 918, 922 (9th Cir. 2002). 20 To determine whether the pending action is timely, it is necessary to determine when 21 AEDPA’s limitations period began and ended. Pursuant to 28 U.S.C. § 2244(d)(1)(A)-(D), 22 AEDPA’s limitations period “begins to run from the latest of”: 23 (A) the date on which the judgment became final by the conclusion of direct review or 24 the expiration of the time for seeking such review; 25 (B) the date on which the impediment to filing an application created by State action 26 in violation of the Constitution or laws of the United States is removed, if the 27 applicant was prevented from filing by such State action; 28 6 1 (C) the date on which the constitutional right asserted was initially recognized by the 2 Supreme Court, if the right has been newly recognized by the Supreme Court and 3 made retroactively applicable to cases on collateral review; or 4 (D) the date on which the factual predicate of the claim or claims presented could 5 have been discovered through the exercise of due diligence. 6 A habeas corpus claim can “be timely, even if filed after the one-year time period has 7 expired, when statutory or equitable tolling applies.” Jorss v. Gomez, 311 F.3d 1189, 1192 8 (9th Cir. 2002). However, “a court must first determine whether a [claim] was untimely 9 under the statute itself before it considers whether equitable [or statutory] tolling should be 10 applied. As a matter of logic, where a [claim] is timely filed within the one-year statute of 11 limitation imposed by AEDPA, 28 U.S.C. § 2244(d)(1), then equitable [or statutory] tolling 12 need not be applied. Similarly, equitable tolling need not be applied where a [claim] is 13 timely due to statutory tolling under § 2244(d)(2).” Id. 14 Following this framework, the Court first analyzes whether Grounds One and Three 15 are facially timely and, if necessary, proceeds to determine whether Petitioner is entitled to 16 statutory or equitable tolling. 17 C. 18 19 Ground Three 1. Ground Three Is Facially Untimely Under Section 2244(d)(1)(A) of the AEDPA, “a federal petition for writ of habeas 20 corpus . . . must be filed within one year after the state court judgment becomes final by the 21 conclusion of direct review or the expiration of the time to seek direct review.” Porter v. 22 Ollison, 620 F.3d 952, 958 (9th Cir. 2010); 28 U.S.C. § 2244(d)(1)(A). In m ost cases, a 23 state prisoner’s limitations period will be governed by Section 2244(d)(1)(A). See Dodd v. 24 United States, 545 U.S. 353, 357 (2005) (discussing a parallel limitations provision for 28 25 U.S.C. § 2255 and noting that the provision establishes the operative accrual date “[i]n most 26 cases”). 27 28 Petitioner’s did not file a direct appeal, and his conviction became final on April 10, 2017, when his appeal deadline expired sixty days after sentencing. See Cal. R. Ct. 7 1 8.308(a); Caspari v. Bohlen, 510 U.S. 383, 390 (1994). T hus, Petitioner had until April 10, 2 2018, to file the claim in Ground Three. 3 4 5 6 Petitioner constructively filed the initial Petition on July 19, 2018, which was 100 days after the limitations was set to expire. Absent sufficient tolling, Ground Three is untimely. 2. Statutory Tolling Section 2244(d)(2) tolls the statute of limitations during the pendency of “a properly 7 filed application for State post-conviction or other collateral review.” “A state habeas 8 petition is ‘pending’ as long a the ordinary state collateral review process continues.” 9 Trigueros v. Adams, 658 F.3d 983, 988 (9th Cir. 2011) (citing Carey v. Saffold, 536 U.S. 10 11 214, 219-20 (2002)). The statute of limitations is not tolled between the time the petitioner’s conviction 12 becomes final on direct review and the time the next state collateral challenge is filed 13 because there is no case “pending” during that time. Nino v. Galaza, 183 F.3d 1003, 1006 14 (9th Cir. 1999). In California, a state habeas petition remains pending between a lower 15 court’s denial of the petition and the filing of a habeas petition raising the same general 16 claims in a higher state court, as long as the interval between the petitions is “reasonable.” 17 Evans v. Chavis, 546 U.S. 189, 191-92, 201 (2006); Carey v. Saffold, 536 U.S. 214, 222-23 18 (2002); Gaston v. Palmer, 417 F.3d 1030, 1043 (9th Cir. 2005), amended, 447 F.3d 1165 19 (9th Cir. 2006); Biggs v. Duncan, 339 F.3d 1045, 1047-48 (9th Cir. 2003). Periods of up to 20 120 days are presumptively reasonable under California law as to claims that were not 21 denied by the lower court as untimely. White v. Martel, 601 F.3d 882, 884 (9th Cir. 2010 22 (per curiam) (“When a California state court determines that a state prisoner’s state habeas 23 petition is untimely under state law, there is no properly filed state petition, and the state 24 prisoner is not entitled to statutory tolling under the AEDPA.” (internal quotations and 25 alterations omitted)); Robinson v. Lewis, 9 Cal.5th 883, 891 (2020) (“A new petition filed in a 26 higher court within 120 days of the lower court’s denial will never be considered untimely 27 due to gap delay”). 28 8 1 Here, Petitioner is not entitled to tolling for the 196 days between the time his 2 conviction became final on April 10, 2017, and the time his first state petition was 3 constructively filed on October 23, 2017, because there was no case “pending” during that 4 time. See Nino, 183 F.3d at 1006. 5 Respondent concedes, and the Court concurs, that Petitioner is entitled to tolling for 6 the entirety of his first round of state habeas petitions from October 23, 2017, when he 7 constructively filed his first habeas petition in the Los Angeles County Superior Court, until 8 May 9, 2018, when his first habeas petition to the California Supreme Court was denied. 9 (See LD 2-LD 7; see also Motion to Dismiss at 10.) At this time, 196 days had elapsed, and 10 169 days remained of the limitations period. When Petitioner constructively filed his 11 Petition in this Court 71 days later, on July 19, 2018, it was timely. 12 D. 13 Respondent concedes, and the Court concurs, that an alternate start date of the 14 limitations period applies to Ground One. (Motion to Dism iss at 5.) Under 28 U.S.C. § 15 2244(d)(1)(D), the statute of limitations begins to run on the date the factual predicate of a 16 claim “could have been discovered through the exercise of due diligence.” 17 Ground One Is Facially Timely In Ground One, Petitioner alleges the California Supreme Court erred when it failed 18 to remand his case to the Superior Court for resentencing on the firearm enhancement 19 under SB 620, which vested trial courts with the discretion to strike firearm enhancements. 20 SB 620 became effective on January 1, 2018. 21 Thus, the limitations period began to run as to Ground One on January 1, 2018, and 22 was set to expire January 1, 2019. The Petition, which was constructively filed July 19, 23 2018, and which included Ground One, was timely. 24 25 *** Grounds One and Three, which were set forth in the original Petition and stayed 26 pursuant to Rhines, were timely filed as explained above. Respondent’s Motion to Dismiss 27 these claims as untimely should be denied. 28 9 1 2 3 II. PETITIONER FAILS TO STATE A COGNIZABLE FEDERAL CLAIM All of Petitioner’s claims should be dismissed because they are not cognizable on federal habeas review. 4 A. 5 A petitioner may seek federal habeas relief from a state court conviction or sentence 6 "only on the ground that he is in custody in violation of the Constitution or laws or treaties of 7 the United States." 28 U.S.C. § 2254(a); accord Swarthout v. Cooke, 562 U.S. 216, 219 8 (2011) (per curiam). Matters relating solely to the interpretation or application of state law 9 generally are not cognizable on federal habeas review. See Lewis v. Jeffers, 497 U.S. 764, 10 780 (1990) ("federal habeas corpus relief does not lie for errors of state law"); Waddington 11 v. Sarausad, 555 U.S. 179, 192 n.5 (2009) (" [W]e have repeatedly held that 'it is not the 12 province of a federal habeas court to reexamine state-court determinations on state-law 13 questions.'") (quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)); Langford v. Day, 110 14 F.3d 1380, 1389 (9th Cir. 1997) ("[A]lleged errors in the application of state law are not 15 cognizable in federal habeas corpus [proceedings]."). Applicable Law 16 B. 17 In Ground One, Petitioner challenges the California Supreme Court’s failure to order Grounds One and Three 18 the Superior Court to consider resentencing him pursuant to SB 620. (FAP at 5-6.) In 19 Ground Three, he alleges that the trial court erred by using the same prior conviction to 20 impose a prior serious felony enhancement and a prior prison term enhancement in 21 violation of Cal. Penal Code § 654. (FAP at 6-7.) 22 Grounds One and Three allege violations of state sentencing laws. A challenge to 23 the provisions of a state sentencing law does not generally state a federal habeas claim. 24 Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) (“Absent a show ing of fundamental 25 unfairness, a state court's misapplication of its own sentencing laws does not justify federal 26 habeas relief."); see also Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Rather, a f ederal 27 habeas court is bound by the state court's determination concerning the provisions of state 28 law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("[A] state court's interpretation of 10 1 state law . . . binds a federal court sitting in habeas corpus.")). On federal habeas review, 2 the question "is not whether the state sentencer committed state-law error," but whether the 3 sentence imposed on the Petitioner is "so arbitrary and capricious" as to constitute an 4 independent due process violation. Richmond v. Lewis, 506 U.S. 40, 50 (1992). 5 There is no showing here that the state courts’ decisions were so arbitrary and 6 capricious as to violate due process. Moreover, Petitioner may not convert a state law 7 claim into a federal one simply by characterizing his claims as federal constitutional 8 violations. See Langford, 110 F.3d at 1389 ("[The petitioner] may not . . . transform a 9 state-law issue into a federal one merely by asserting a violation of due process"). 10 Plaintiff’s claims in Grounds One and Three regarding violations of state sentencing laws 11 are not cognizable on federal habeas review and should be dismissed with prejudice. 12 C. 13 In Ground Two, Petitioner alleges that the CDCR wrongfully disqualified him from Ground Two – Parole Consideration Under Proposition 57 14 nonviolent parole consideration under Proposition 57. (FAP at 5-6.) Proposition 57 15 amended the California Constitution to require a parole consideration process for inmates 16 convicted of nonviolent crimes. Petitioner claims his exclusion from this process violates 17 his federal constitutional rights. (Id.) 18 A state prisoner has two avenues for relief under federal law: a petition for writ of 19 habeas corpus and a complaint under 42 U.S.C. § 1983. See Hill v. McDonough, 547 U.S. 20 573, 579 (2006). The Supreme Court explained that “a § 1983 action is the exclusive 21 vehicle for claims brought by state prisoners that are not within the core of habeas corpus.” 22 Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc). A claim lies at the core of 23 habeas corpus if success on that claim would “necessarily spell speedier release” from 24 prison. Skinner v. Switzer, 562 U.S. 521, 525 n.13 (2011) (internal quotations omitted). 25 Petitioner challenges his exclusion from nonviolent parole consideration under 26 Proposition 57. The enactments under Proposition 57 afford nonviolent prisoners a parole 27 review once they have served the full term of their primary offense. Cal. Const. art. I, § 32 28 (a)(1). An advancement of Petitioner’s parole review date provides only “a ticket to get in 11 1 the door of the parole board” and “will in no way guarantee parole or necessarily shorten 2 [his] prison sentence[] by a single day.” Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 3 1997). Absent a showing that success on his claim would “alter the calculus for the review 4 of parole requests” so as to “compel the grant of parole,” Petitioner’s claim does not lie at 5 the core of habeas corpus. See Nettles, 830 F.3d at 934; see also Neal, 131 F.3d at 824. 6 Accordingly, Petitioner’s claim regarding eligibility for parole review under Proposition 57 is 7 not cognizable on habeas review. Nettles, 830 F.3d at 934 (quoting Skinner, 562 U.S. at 8 535 n.13) (emphasis added). 9 Even if Petitioner would be entitled to an earlier release date if the good time credits 10 allowed by Proposition 57 were applied, his claim is still based on the application of state 11 law and, therefore, is not cognizable in this federal habeas corpus action. See Estelle, 502 12 U.S. at 67 "We have stated many times that 'federal habeas corpus relief does not lie for 13 errors of state law.'") (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). Although 14 Petitioner attempts to couch Ground Two in terms of a due process violation, he cannot 15 transform it into a federal claim. See Langford, 110 F.3d at 1389 ("[A petitioner] may not . . 16 . transform a state-law issue into a federal one merely by asserting a violation of due 17 process."). The calculation of Petitioner's release date is purely a matter of state 18 sentencing law. Accordingly, Plaintiff’s claim in Ground Two regarding parole eligibility 19 should be dismissed with prejudice. 20 D. 21 In Grounds Two and Four, Petitioner alleges that the CDCR improperly limited him to Grounds Two and Four – Limitation on Worktime Credits 22 earning fifteen percent, rather than thirty-three percent, worktime credits. (FAP at 5-9; 23 Supp. at 2-3.) These claims are based solely on California law. 24 A due process claim is cognizable only if there is a liberty interest at stake. Olim v. 25 Wakinekona, 461 U.S. 238, 250 (1983). “[T ]he Constitution itself does not guarantee good- 26 time credit for satisfactory behavior while in prison,” and a liberty interest in receiving such 27 credits arises only if the State actually has provided for such credits through statute or 28 regulation. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). Cal. Penal Code §§ 2933 and 12 1 2933.1(a) set out the credit rates that inmates may earn and limits the credit-earning rate to 2 fifteen percent for inmates like Petitioner who are convicted of a violent felony. California 3 has made clear that earing credits “is a privilege not a right.” Cal. Penal Code § 2933(c); 4 see also Kalka v. Vasquez, 867 F.2d 546, 547 (9th Cir. 1989) (no protected liberty interest 5 in earning worktime credits); Toussaint v. McCarthy, 801 F.2d 1080, 1094-95 (9th Cir. 1986) 6 (same), abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). 7 Petitioner has no constitutionally protected liberty interest in earning worktime credits, and 8 his allegations that he is being deprived of the opportunity to earn such credits at a higher 9 rate cannot form a basis for habeas corpus relief. 10 Thus, Petitioner’s claims in Grounds Two and Four regarding the rate of earning 11 worktime credits are not cognizable on federal habeas review and should be dismissed with 12 prejudice. 13 *** 14 All of Petitioner’s claims are based on the application of state law and are not 15 cognizable on federal habeas review. Accordingly, the Motion to Dismiss the FAP for 16 failure to state a claim should be granted and this action should be dismissed with 17 prejudice.4 18 19 CERTIFICATE OF APPEALABILITY Pursuant to Rule 11 of the Rules Governing Section 2254 cases, the Court “must 20 issue or deny a certificate of appealability when it enters a final order adverse to the 21 applicant.” For the reasons stated above, the Court concludes that Petitioner has not m ade 22 a substantial showing of the denial of a constitutional right, as is required to support the 23 issuance of a certificate of appealability. See 28 U.S.C. § 2253(c)(2). 24 25 26 4 27 28 Respondent also argues that Petitioner’s claims are still unexhausted. Dismissal for failure to exhaust state remedies is usually without prejudice. Because the Court has found that the Petition should be dismissed with prejudice for failure to state a cognizable federal habeas claim, the Court will not address the exhaustion argument. 13 1 ORDER 2 Based on the foregoing, IT IS HEREBY ORDERED: (1) Respondent’s Motion to 3 Dismiss is GRANTED; (2) judgment shall be entered dismissing this action with prejudice; 4 and (3) a certificate of appealability is DENIED. 5 6 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE DATED: February 16, 2021 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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