Hundal v. Ochoa et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 8/2/12 RECOMMENDING that 9 MOTION to Dismiss be granted. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 21 days.(Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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KANWALJIT SINGH HUNDAL,
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Petitioner,
vs.
J. TIM OCHOA, et al.,
Respondents.
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No. 2: 12-cv-0352 MCE KJN P
FINDINGS AND RECOMMENDATIONS
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Petitioner is a state prisoner, proceeding without counsel, with a petition for writ
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of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that he is entitled to pre-
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sentence credits pursuant to California Penal Code § 4019.
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Pending before the court is respondent’s motion to dismiss on grounds that
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petitioner fails to allege a violation of federal law. For the following reasons, respondent’s
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motion should be granted.
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A writ of habeas corpus is available under 28 U.S.C. § 2254(a) only on the basis
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of some transgression of federal law binding on the state courts. Middleton v. Cupp, 768 F.2d
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1083, 1085 (9th Cir. 1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). It is
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unavailable for alleged error in the interpretation or application of state law. Middleton v. Cupp,
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768 F.2d at 1085; see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v.
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Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986). Habeas corpus cannot be used to try state
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issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
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The background to petitioner’s claim is as follows. In 2007, petitioner was
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convicted of violating California Penal Code § 288(a) and sentenced to 6 years imprisonment.
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(Dkt. No. 1 at 1.) Since 1976, California Penal Code § 4019 has offered prisoners in local
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custody the opportunity to earn “conduct credit” against their sentences for good behavior.
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People v. Brown, 54 Cal.4th 314, 317 (June 18, 2012). For eight months during 2010, a
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now-superseded version § 4019 that was enacted during a state fiscal emergency temporarily
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increased the rate at which local prisoners could earn conduct credits. Id. at 317-18. In the
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instant action, petitioner argues that he is entitled to conduct credits under the now-superseded
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version of § 4019.
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On June 12, 2012, the California Supreme Court decided that the now-superseded
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version of § 4019 does not apply retroactively to prisoners who served time in local custody
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before January 25, 2010, i.e., the date the on which the now-superseded version of § 4019
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became effective. People v. Brown, 54 Cal.4th 314, 318 (June 12, 2012). The California
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Supreme Court held that the now-superseded version of § 4019 applies prospectively to qualified
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prisoners in local custody on the statute’s operative date. Id. Because petitioner was not in local
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custody on the statute’s operative date, he is not entitled to credits pursuant to the now-
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superseded version of § 4019.
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Petitioner’s claim is based on an alleged violation of state law. For this reason,
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respondent’s motion to dismiss should be granted. In any event, as discussed above, pursuant to
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the California Supreme Court’s recent decision in People v. Brown, petitioner is not entitled to
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the credits sought under state law.1
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This court is bound to accept the California Supreme Court’s finding that the nowsuperseded version of § 4019 does not apply retroactively unless that interpretation is “untenable
or amounts to a subterfuge to avoid federal review of a constitutional violation.” See Oxborrow
v. Eikenbery, 877 F.2d 1395 , 1399 (9th Cir. 1989). The California Supreme Court’s decision in
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IT IS HEREBY RECOMMENDED that respondent’s motion to dismiss (Dkt. No.
9) be granted.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-
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one days after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files
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objections, he shall also address whether a certificate of appealability should issue and, if so, why
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and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if
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the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
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2253(c)(3). Any response to the objections shall be filed and served within fourteen days after
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service of the objections. The parties are advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951
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F.2d 1153 (9th Cir. 1991).
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DATED: August 2, 2012
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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hun352.mtd
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People v. Brown is neither untenable nor a subterfuge to avoid federal review.
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