Rodriguez v. Warden of Susanville State Prison et al

Filing 10

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/19/2014 DENYING the petition and DISMISSING the action with prejudice. CASE CLOSED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAUL RODRIQUEZ,

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No. 2:13-cv-1768-EFB P

Petitioner,
v.

ORDER

WARDEN OF SUSANVILLE STATE
PRISON,
Respondent.

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Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas
corpus. See 28 U.S.C. § 2254.1 He has paid the filing fee.

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Petitioner claims that California Penal Code section 2931 entitles him to credits which

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should reduce his indeterminate sentence by one-third. He claims that respondent’s failure to

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reduce his sentence violates his due process rights and the prohibition against ex post facto laws.

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He also claims he is entitled to an immediate release date, without parole, pursuant to Penal Code

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section 1170.2(b). As stated below, the petition fails to raise a cognizable claim and must be

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dismissed.

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
§ 636(b)(1) and is before the undersigned pursuant to petitioner’s consent. See 28 U.S.C. § 636;
see also E.D. Cal. Local Rules, Appx. A, at (k)(4).
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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a

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petition if it plainly appears from the petition and any attached exhibits that the petitioner is not

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entitled to relief. See Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4 “explicitly

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allows a district court to dismiss summarily the petition on the merits when no claim for relief is

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stated”). Moreover, the Advisory Committee Notes to Rule 8 of the Rules Governing Section

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2254 Cases indicate that the court may dismiss a petition for writ of habeas corpus on its own

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motion under Rule 4. However, the court should not dismiss a petition without leave to amend

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unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v.

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Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

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As an initial matter, whether prison officials have properly applied credits to petitioner’s

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sentence is not cognizable as a claim for federal habeas relief. It is not the role of the federal

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habeas court to clarify or correct the application of state law. See Estelle v. McGuire, 502 U.S.

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62, 67 (1991) (“We have stated many times that federal habeas corpus relief does not lie for

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errors of state law”) (internal quotations omitted); see also Remsen v. Holland, No. 1:12-cv-731-

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BAM, 2012 U.S. Dist. LEXIS 111737, at *45 (E.D. Cal. Aug. 7, 2012) (summarily rejecting

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petitioner’s claim that § 2931 had not been properly applied to him); McCright v. Warden of

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Pelican Bay State Prison, No. C 11-4715 JW, 2012 U.S. Dist. LEXIS 189801, at *16-17 (N.D.

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Cal. Aug. 2, 2012) (dismissing claim of indeterminately sentenced petitioner that sentence should

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be reduced pursuant to § 2931 and that sentence should be converted to a determinate term

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pursuant to § 1170.2(b)); Williams v. Knipp, No. 2:11-cv-2181-GEB-KJN, 2012 U.S. Dist.

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LEXIS 89316, at *8 (E.D. Cal. June 26, 2012) (“Petitioner’s challenge premised on [§ 2931 in

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part,] and his claim that good time credits can convert a life prisoner to a determinately sentenced

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prisoner, are without merit”).

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Moreover, petitioner has not stated cognizable due process or ex post facto claims.

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Petitioner admits that he was sentenced to an indeterminate term of 15 years to life following a

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conviction of second degree murder. ECF No. 1 at 1. An attachment to the petition shows that

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the Board of Parole Terms denied petitioner parole on May 20, 2006. ECF No. 1 at 28. As an

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indeterminately sentenced prisoner, petitioner cannot be released until he is found suitable for
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parole, regardless of the length of time he serves in prison. In re Dannenberg, 34 Cal. 4th 1061,

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1083-84 (2005); Cal. Pen. Code § 3041(b). Thus, petitioner may serve a maximum term of life in

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prison. People v. Dyer, 269 Cal.App.2d 209, 214 (1969). As an indeterminately sentenced

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inmate, “the credits that Petitioner is statutorily entitled to earn . . . have no direct impact on the

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amount of time he must actually serve until the Board determines he is suitable for parole and

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assigns him a parole release date.” Bowens v. Sisto, No. Civ. S-08-CV-1489-LKK-CHS, 2011

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U.S. Dist. LEXIS 60047, at *38 (E.D. Cal. June 6, 2011). Thus, petitioner’s contention that his

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accrual of credits entitles him to a certain release date plainly lacks merit. See Williams, 2012

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U.S. Dist. LEXIS 89316, at *11 (rejecting indeterminately sentenced petitioner’s claim that

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accrual of credits created a “vested state right” to immediate release on parole); see also Jimenez

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v. Hartley, No. CV 06-55-PSG, 2010 U.S. Dist. LEXIS 139872, at *19-20 (C.D. Cal. Dec. 6,

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2010) (explaining that, by its own terms § 2931 “only applies to determinate sentences,” and that

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in the case of an indeterminately sentenced inmate, the Board may simply take credits into

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consideration when setting a release date).

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In arguing that his sentence must be reduced and that he is entitled to a certain release

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date, petitioner is, in essence, claiming that his indeterminate sentence should be converted to a

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determinate sentence. However, “[t]here is no state-created liberty interest in having a term of

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years set for a prisoner serving an indeterminate life term for murder who has not been found

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suitable for parole.” McCright, 2012 U.S. Dist. LEXIS 189801, at *17. Petitioner’s sentence

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remains indeterminate even after the enactment of the determinate sentencing law. See id. It

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follows, therefore, that preventing an indeterminately sentenced inmate from reducing his

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sentence through his accrual of § 2931 credits, does not violate the prohibition against ex post

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facto laws. Id. at 17-18. Absent a change in the law that increased his quantum of punishment,

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petitioner cannot demonstrate an ex post facto claim. See Collins v. Youngblood, 497 U.S. 37, 42

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(1990) (summarizing acts that implicate the “core concern” of the Ex Post Facto Clause).

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For these reasons, the petition does not raise a cognizable federal claim, and must be

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dismissed.

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Accordingly, IT IS HEREBY ORDERED that judgment be entered denying the petition

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and dismissing the action with prejudice.

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DATED: May 19, 2014.

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