Stevenson v. Beiartch

Filing 14

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Percy Anderson. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that Judgment shall be entered denying and dismissing the Petition with prejudice. (Attachments: # 1 Report and Recommendation) (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JAMES ANTHONY STEVENSON,

) NO. ED CV 16-1041-PA(E)
)
Petitioner,
)
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v.
) REPORT AND RECOMMENDATION OF
)
TIM BEIARTCH, Director of
) UNITED STATES MAGISTRATE JUDGE
the Dept. of Corrections,
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)
Respondent.
)
______________________________)

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This Report and Recommendation is submitted to the Honorable

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Percy Anderson, United States District Judge, pursuant to 28 U.S.C.

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section 636 and General Order 05-07 of the United States District

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Court for the Central District of California.

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PROCEEDINGS

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On May 16, 2016, Petitioner filed a “Petition for Writ of Habeas

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Corpus Under 28 U.S.C. § 2254 By a Person in State Custody” in the

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United States District Court for the Southern District of California.

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On May 18, 2016, the United States District Court of the Southern
District of California

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transferred the Petition to this Court.

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June 15, 2016.

Respondent filed an Answer on

Petitioner filed a Reply on July 19, 2016.

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BACKGROUND

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In 2008, Petitioner pled nolo contendere to second degree robbery

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with use of a firearm (Petition, ECF Dkt. No. 1, p. 2; Respondent’s

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Lodgment 1; Respondent’s Lodgment 2, p. AG-0004).

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a fourteen-year prison sentence (Petition, ECF Dkt. No. 1, p. 1;

Petitioner received

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Respondent’s Lodgment 1; Respondent’s Lodgment 2, p. AG-0004).

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California Department of Corrections and Rehabilitation (“CDCR”)

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determined that Petitioner was entitled to earn 15% credits as

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provided in California Penal Code section 2933.1 (see Petition, ECF

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Dkt. No. 1, p. 47).

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On November 6, 2014, Petitioner submitted a letter to the CDCR

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Secretary purporting to waive his alleged rights to receive credits

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“imposed by the courts” under California Penal Code section 2934

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(Petition, ECF Dkt. NO. 1, p. 6 & Exhibits, p. 36).1

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apparently argues that the purported waiver should permit Petitioner

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to earn work-time credits pursuant to California Penal Code section

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2933, a more general work-time credit statute, through participation

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in the “Inmate Work/Training Incentive Program and positive

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programming periods” (Petition, ECF Dkt. No. 1, p. 6; Respondent’s

Petitioner

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Although Petitioner purported to waive his alleged
rights under section 2934 of the CDCR Department Operations
Manual, the Manual contains no such section. California Penal
Code section 2934 concerns credit waivers, as discussed herein.
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Lodgment 2, AG-005; Respondent’s Lodgment 5, AG-0020).

Petitioner

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allegedly did not receive a response to his November 2014 letter and

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did not receive any relief through the CDCR inmate appeals process

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(id.).

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rejected Petitioner’s assertion that the alleged waiver should permit

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Petitioner to earn work-time credits pursuant to section 2933 (see

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Petition, ECF Dkt. No. 1 Exhibits, pp. 37-46).

Documents attached to the Petition show that prison officials

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Petitioner filed a habeas corpus petition in the Riverside County

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Superior Court, which that court denied in a brief order (Respondent’s

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Lodgments 2, 3).

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California Court of Appeal, which that court denied summarily

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(Respondent’s Lodgments 4, 6).

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in the California Supreme Court, which that court denied summarily

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(Respondent’s Lodgments 5, 7).

Petitioner filed a habeas corpus petition in the

Petitioner filed a petition for review

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PETITIONER’S CONTENTIONS

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Petitioner contends:

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1.

CDCR’s requirement that Petitioner participate in the Inmate

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Work/Training Incentive Program and its refusal to permit Petitioner

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to earn section 2933 credits for such participation allegedly violate

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Due Process (Ground One);

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2.

CDCR allegedly is violating Petitioner’s Ninth Amendment

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rights by denying him the ability to earn credits for participation in

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the Inmate Work/Training Incentive Program (Ground Two); and
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CDCR’s refusal to permit Petitioner to earn credits for his

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participation in the Inmate Work/Training Incentive Program allegedly

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violates Equal Protection (Ground Three).

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STANDARD OF REVIEW

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Under the “Antiterrorism and Effective Death Penalty Act of 1996”

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(“AEDPA”), a federal court may not grant an application for writ of

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habeas corpus on behalf of a person in state custody with respect to

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any claim that was adjudicated on the merits in state court

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proceedings unless the adjudication of the claim:

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decision that was contrary to, or involved an unreasonable application

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of, clearly established Federal law, as determined by the Supreme

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Court of the United States”; or (2) “resulted in a decision that was

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based on an unreasonable determination of the facts in light of the

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evidence presented in the State court proceeding.”

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2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v.

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Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09

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(2000).

(1) “resulted in a

28 U.S.C. §

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“Clearly established Federal law” refers to the governing legal

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principle or principles set forth by the Supreme Court at the time the

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state court renders its decision on the merits.

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S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

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A state court’s decision is “contrary to” clearly established Federal

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law if:

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Court law; or (2) it “confronts a set of facts . . . materially

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indistinguishable” from a decision of the Supreme Court but reaches a

Greene v. Fisher, 132

(1) it applies a rule that contradicts governing Supreme

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different result.

See Early v. Packer, 537 U.S. at 8 (citation

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omitted); Williams v. Taylor, 529 U.S. at 405-06.

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Under the “unreasonable application prong” of section 2254(d)(1),

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a federal court may grant habeas relief “based on the application of a

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governing legal principle to a set of facts different from those of

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the case in which the principle was announced.”

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538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537

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U.S. at 24-26 (state court decision “involves an unreasonable

Lockyer v. Andrade,

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application” of clearly established federal law if it identifies the

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correct governing Supreme Court law but unreasonably applies the law

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to the facts).

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“In order for a federal court to find a state court’s application

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of [Supreme Court] precedent ‘unreasonable,’ the state court’s

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decision must have been more than incorrect or erroneous.”

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Smith, 539 U.S. 510, 520 (2003) (citation omitted).

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court’s application must have been ‘objectively unreasonable.’”

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at 520-21 (citation omitted); see also Waddington v. Sarausad, 555

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U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th

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Cir. 2004), cert. dism’d, 545 U.S. 1165 (2005).

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habeas court must determine what arguments or theories supported,

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. . . or could have supported, the state court’s decision; and then it

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must ask whether it is possible fairminded jurists could disagree that

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those arguments or theories are inconsistent with the holding in a

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prior decision of this Court.”

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101 (2011).

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2254(d)(1).”

Wiggins v.

“The state
Id.

“Under § 2254(d), a

Harrington v. Richter, 562 U.S. 86,

This is “the only question that matters under §
Id. at 102 (citation and internal quotations omitted).
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Habeas relief may not issue unless “there is no possibility fairminded

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jurists could disagree that the state court’s decision conflicts with

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[the United States Supreme Court’s] precedents.”

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for obtaining habeas corpus from a federal court, a state prisoner

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must show that the state court’s ruling on the claim being presented

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in federal court was so lacking in justification that there was an

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error well understood and comprehended in existing law beyond any

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possibility for fairminded disagreement.”

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these standards to Petitioner’s exhausted claims, the Court looks to

Id.

Id. at 103.

“As a condition

In applying

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the last reasoned state court decision, here the decision of the Court

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of Appeal.

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2008).

See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir.

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Additionally, federal habeas corpus relief may be granted “only

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on the ground that [Petitioner] is in custody in violation of the

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Constitution or laws or treaties of the United States.”

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2254(a).

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of whether the petition satisfies section 2254(a) prior to, or in lieu

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of, applying the standard of review set forth in section 2254(d).

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Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

28 U.S.C. §

In conducting habeas review, a court may determine the issue

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DISCUSSION

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I.

Petitioner’s Due Process Claim Does Not Merit Federal Habeas
Relief.

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Matters relating to sentencing and serving of a sentence
generally are governed by state law and do not raise a federal
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constitutional question.

See Miller v. Vasquez, 868 F.2d 1116, 1118-

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Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021

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(1986); Sturm v. California Adult Authority, 395 F.2d 446, 448 (9th

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Cir. 1967), cert. denied, 395 U.S. 947 (1969).

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circumstances, however, the misapplication of state sentencing law may

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violate due process.

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“[T]he federal, constitutional question is whether [the error] is so

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arbitrary or capricious as to constitute an independent due process”

Under narrow

See Richmond v. Lewis, 506 U.S. 40, 50 (1992).

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violation.

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Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) (“Absent a

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showing of fundamental unfairness, a state court’s misapplication of

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its own sentencing laws does not justify federal habeas relief.”).

Id. (internal quotation and citation omitted); see also

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No fundamental unfairness occurred here.

Under California Penal

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Code section 2933, a nonviolent offender generally may earn work-time

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credit to reduce his or her sentence by fifty percent.

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Code §§ 2933, 2933.1.

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qualified as a violent felony under California law.

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Code § 667.5(c)(9).

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accrue more than 15% credit.

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(“Notwithstanding any other law, any person who is convicted of a

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felony offense listed in subdivision (c) of Section 667.5 shall accrue

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no more than 15 percent of worktime credit, as defined in Section

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See Cal. Penal

However, Petitioner’s crime of robbery
See Cal. Penal

For this reason, Petitioner is not entitled to
See Cal. Penal Code § 2933.1(a)

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2933”);2 Bankuthy v. Yates, 376 Fed. App’x 694, 695 (9th Cir. 2010)

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(rejecting due process challenge to state’s failure to award violent

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offender day-for-day credits; “Cal. Penal Code §2933.1 clearly limits

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the sentence credits Bankruthy may earn . . . to fifteen percent.”);

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Aung v. Beard, 2014 WL 7185336, at *2 (C.D. Cal. Dec. 15, 2014) (“As a

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matter of state law, the 15% rate in § 2933.1 expressly overrides the

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credit accrual rule in § 2933 or any other statute.”) (citation

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omitted).

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Petitioner’s purported section 2934 waiver is unavailing.

Prior

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to 1982, prisoners earned credits at the rate of one day of credit for

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every two days of good behavior or participation in work programs or

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other activities, pursuant to California Penal Code section 2931.

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Miller v. Rowland, 999 F.2d 389, 390 (9th Cir. 1993), cert. denied,

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511 U.S. 1008 (1994).

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new system for awarding credits to prisoners sentenced after

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January 1, 1983, under which prisoners could earn one day of credit

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for each day of participation in work assignments or educational

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programs.

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390.

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that “a prisoner subject to the provisions of Section 2931 may waive

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the right to receive time credits as provided in Section 2931 and be

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subject to the provisions of Section 2933.”

In 1982, the California legislature adopted a

See Cal. Penal Code § 2933; Miller v. Rowland, 999 F.2d at

For prisoners sentenced before 1983, the legislature provided

Cal. Penal Code § 2934.

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See

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Notwithstanding its title (“Worktime credits on
sentence, etc.”), section 2933, as amended in 2010, does not
limit credits to those based on participation in work programs,
but rather allows prisoners to receive credits based on time
served. See Edwards v. Swarthout, 597 Fed. App’x 914, 915 (9th
Cir. 2014).
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Such waiver option is unavailable to Petitioner, however.

Petitioner

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was sentenced long after 1983.

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(not section 2931 or section 2933) governs Petitioner’s credit earning

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status.

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where petitioner was not entitled to earn section 2933 credits);

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Kamaleddin v. Hedgpeth, 2011 WL 5922947, at *2 (N.D. Cal. Nov. 28,

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2011) (“Petitioner was convicted after January 1, 1983, and therefore

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not subject to the one-third rate of section 2931; he cannot obtain a

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waiver from 2931 since it did not apply to him.”).

California Penal Code section 2933.1

See Miller v. Rowland, 999 F.2d at 392 (waiver ineffective

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To the extent Petitioner contends that prison officials are

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violating Petitioner’s constitutional rights by compelling Petitioner

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to work, any such contention cannot merit federal habeas relief.

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“There is no federally protected right of a state prisoner not to work

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while imprisoned after conviction. . . .”

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193, 197 (9th Cir.), cert. denied, 375 U.S. 915 (1963).

Draper v. Rhay, 315 F.2d

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For the foregoing reasons, the state courts’ rejection of

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Petitioner’s due process claim was not contrary to, or an objectively

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unreasonable application of, any clearly established Federal Law as

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determined by the United States Supreme Court.

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2254(d); Harrington v. Richter, 562 U.S. at 100-03.

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entitled to federal habeas relief on Ground One of the Petition.

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See 28 U.S.C. §
Petitioner is not

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II.

Petitioner’s Ninth Amendment Claim Does Not Merit Federal Habeas
Relief.

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The Ninth Amendment does not “independently [secure] any

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constitutional right, for purposes of pursuing a civil rights claim.”

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Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986)

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(citations omitted); see also Ramirez v. Butte–Silver Bow County, 298

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F.3d 1022, 1029 (9th Cir. 2002), aff'd on other grounds sub nom. Groh

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v. Ramirez, 540 U.S. 551 (2004) (Ninth Amendment claim properly

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dismissed because plaintiff may not “‘double up’ constitutional

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claims”); Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir.

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1991), cert. denied, 503 U.S. 951 (1992) (“Schowengerdt’s Ninth

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Amendment argument is meritless, because that amendment has not been

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interpreted as independently securing any constitutional rights for

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purposes of making out a constitutional violation”).

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Ground Two of the Petition fails to allege any basis for federal

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habeas relief.

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736-37.

Accordingly,

See 28 U.S.C. § 2254(a); Frantz v. Hazey, 533 F.3d at

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III. Petitioner’s Equal Protection Claim Does Not Merit Federal Habeas
Relief.

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“The Equal Protection Clause directs that all persons similarly

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circumstanced shall be treated alike.”

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216 (1982) (citation and internal quotations omitted); see also City

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of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985).

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prove an equal protection violation, Petitioner must demonstrate “that

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the [challenged] statute, either on its face or in the manner of its
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Plyler v. Doe, 457 U.S. 202,

To

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enforcement, results in members of a certain group being treated

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differently from other persons based on membership in that group.”

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McLean v. Crabtree, 173 F.3d 1176, 1185 (9th Cir. 1999), cert. denied,

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528 U.S. 1086 (2000) (citation and quotations omitted).

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it is demonstrated that a cognizable class is treated differently, the

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court must analyze under the appropriate level of scrutiny whether the

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distinction made between the two groups is justified.”

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and quotations omitted).

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some form of heightened review because it targets a suspect class or

“Second, if

Id. (citation

Unless a legislative classification warrants

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burdens the exercise of a fundamental right, the Equal Protection

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Clause requires only that the classification be rationally related to

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a legitimate state interest.

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(1997).

See Vacco v. Quill, 521 U.S. 793, 799

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Under rational relationship review, a law is constitutional “so

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long as it bears a rational relation to some legitimate end.”

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v. Evans, 517 U.S. 620, 631 (1996).

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not authorize a court to judge the “wisdom, fairness, or logic of

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legislative choices,” or to “sit as a superlegislature to judge the

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wisdom or desirability of legislative policy determinations made in

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areas that neither affect fundamental rights nor proceed along suspect

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lines.”

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internal quotations omitted).

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neither involving fundamental rights nor proceeding along suspect

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lines is accorded a strong presumption of validity.”

The Equal Protection Clause does

Heller v. Doe, 509 U.S. 312, 319 (1993) (citations and
“For these reasons, a classification

Id.

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Romer

Petitioner’s articulation of his equal protection claim is
extremely cursory and conclusory.

Petitioner states only:
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The Defendant [sic] obligates [Petitioner] to

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participate in the I.W/T.I.P. while denying me the ability

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to earn the credits outlined in said program; furthermore,

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the credit loss aspects of the program fully apply.

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(Petition, ECF Dkt. No. 1, p. 8).

Petitioner thus fails to allege any

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facts demonstrating that he was treated differently from others

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similarly situated or that no rational basis existed for any allegedly

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differential treatment.

Petitioner’s cursory and conclusory

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allegations do not merit federal habeas relief.

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317 Fed. App’x 641, 643 (9th Cir. 2008) (habeas petitioner’s

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conclusory equal protection claim concerning credit denial

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insufficient); Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011)

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(“cursory and vague claim cannot support habeas relief”) (citation

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omitted); Jones v. Gomez, 66 F.3d 199, 204-205 (9th Cir. 1995), cert.

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denied, 517 U.S. 1143 (1996) (conclusory allegations do not warrant

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habeas relief).

See Ashby v. Payne,

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To the extent Petitioner challenges California Penal Code section

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2933.1 on the ground that the statute allegedly discriminates against

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prisoners who have committed violent felonies, and who therefore

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cannot earn credits at more than the 15% rate, any such challenge

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fails.

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because: (1) prisoners do not comprise a suspect class (see Webber v.

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Crabtree, 158 F.3d 460, 461 (9th Cir. 1998)); and (2) no fundamental

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right is at stake because California Penal Code section 2933 does not

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create a constitutionally protected liberty interest (see Kalka v.

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Vasquez, 867 F.2d 546, 547 (9th Cir. 1989)).

The rational basis test would apply to such a challenge

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The California

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Legislature plainly had a rational basis for treating violent

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offenders differently than nonviolent offenders with respect to work-

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time credits.

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Cir. 2007) (section 2933.1 served rational state interest in “treating

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violent offenders more harshly”); Howard v. Yates, 2008 WL 4104250, at

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*5 (E.D. Cal. Sept. 2, 2008) (“The legislative intent underpinning §

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2933.1 warrants the C.D.C.R.’s discriminatory practice of allocating

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credits to inmates depending upon their respective offenses.

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state has a rational basis for discriminating against different

See Contero v. Tilton, 248 Fed. App’x 778, 779-80 (9th

The

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inmates under § 2933.1.”) (citation omitted); People v. Rosales, 222

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Cal. App. 4th 1254, 1262, 166 Cal. Rptr. 3d 620 (2014) (“Violent

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felonies are more serious and logically warrant greater periods of

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incarceration.”).

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In attachments to the Petition (though not in the Petition

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itself), Petitioner also appears to contend that he should benefit

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from an order of the District Court in Coleman v. Brown (United States

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District Court for the Eastern and Northern Districts of California

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case numbers 2:90-00520-KJM KLN PC and C01-1351-THE).

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a three-judge court discussed the State’s plan to expand the use of

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good-time credits for state prisoners (see Petition, ECF Dkt. No. 1,

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pp. 116-121).

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option of amending its good-time credit program without releasing

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violent offenders as long as the overall number of those released

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would not be affected, and the Court left it to the State to determine

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what modifications to make to the proposed credit expansion (id. at p.

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121).

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Petitioner to receive more work-time credits than those currently

In that order,

The Coleman Court indicated that the State had the

Petitioner has not shown that any order in Coleman entitles

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authorized by California Penal Code section 2933.1.

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For all of the foregoing reasons, the state courts’ rejection of

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Petitioner’s equal protection claim was not contrary to, or an

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objectively unreasonable application of, any clearly established

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Federal Law as determined by the United States Supreme Court.

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U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03.

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Petitioner is not entitled to federal habeas relief on Ground Three of

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the Petition.

See 28

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RECOMMENDATION

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For the reasons discussed above, IT IS RECOMMENDED that the Court

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issue an order:

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Recommendation; and (2) denying and dismissing the Petition with

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prejudice.

(1) accepting and adopting this Report and

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DATED: August 10, 2016.

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/S/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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NOTICE
Reports and Recommendations are not appealable to the Court of

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Appeals, but may be subject to the right of any party to file

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objections as provided in the Local Rules Governing the Duties of

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Magistrate Judges and review by the District Judge whose initials

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appear in the docket number.

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Federal Rules of Appellate Procedure should be filed until entry of

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the judgment of the District Court.

No notice of appeal pursuant to the

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If the District Judge enters judgment adverse to Petitioner, the

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District Judge will, at the same time, issue or deny a certificate of

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appealability.

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and Recommendation, the parties may file written arguments regarding

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whether a certificate of appealability should issue.

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Within twenty (20) days of the filing of this Report