Unpublished Disposition, 868 F.2d 1272 (9th Cir. 1987)

MEMORANDUM^** 

John David King, Sr., an Arizona state prisoner, appeals the district court's dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We affirm.

BACKGROUND

On June 14, 1983, one day after his arrest, King was released to the third party custody of the Court Volunteer Center ("CVC"). His release to CVC custody was subject to conditions outlined in a CVC Release Contract. King was required, for example, to report weekly to his CVC pretrial release supervisor, to maintain suitable residence and employment and not to change either without CVC approval, to remain in the state and to seek prior court approval to leave the state, and to participate in any program to which he was referred by the CVC. In addition, he was prohibited from having any contact with the alleged victim of the crime.

King pled guilty pursuant to a plea agreement and remained in the third party custody of the CVC until he was sentenced, on April 10, 1985, to seven years imprisonment. King did not directly appeal his conviction or sentence. On April 4, 1986, King filed a Rule 32 petition for post conviction relief in Arizona state court, alleging that his sentence should be credited pursuant to Ariz.Rev.Stat. Sec. 13-709(B) (1978) for the presentence period when he was in third party custody. The Arizona Superior Court dismissed the petition on the ground that "no material issue of fact or law exists which would entitle defendant to relief under Rule 32." The Arizona Court of Appeals dismissed King's Petition for Review, noting that he was precluded from raising the issue by his failure to raise it on direct appeal, and subsequently finding that, in any event, King's claim was without merit. On January 28, 1987, the Arizona Supreme Court summarily denied King's petition for review.

King filed a petition for a federal writ of habeas corpus under 28 U.S.C. § 2254. Although noting that the petition was "wholly frivolous," the district court dismissed King's petition for lack of jurisdiction because the petition did not allege a federal constitutional claim. King timely appeals, and the district court filed a certificate of probable cause.

This court reviews de novo a district court's dismissal of a habeas corpus petition under 28 U.S.C. § 2254. Prantil v. State of California, 843 F.2d 314, 316 (9th Cir.), cert. denied, --- U.S. ----, 109 S. Ct. 158 (1988); Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir. 1985).

REQUIREMENT OF FEDERAL OR CONSTITUTIONAL CLAIM

Insofar as King's claim involves merely the interpretation and application of state law, the district court was correct in ruling that King alleged no deprivation of a federal right, and could not obtain habeas relief. Pulley v. Harris, 465 U.S. 37, 41 (1984); Engle v. Isaac, 456 U.S. 107, 119 (1982); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied 478 U.S. 1021 (1986). Thus King's primary claim, that he is entitled to credit against his sentence for the time spent in third party custody, cannot be reviewed by the federal courts. Nevertheless, this court liberally construes pro se pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Under a very liberal construction, King's petition and briefs also allege violations of constitutional rights, including double jeopardy, due process, and equal protection.

DOUBLE JEOPARDY

King asserts that the state's failure to credit his sentence for the time spent in third party custody prior to sentencing constitutes multiple punishment, in violation of the double jeopardy clause of the Fifth Amendment. Even assuming, without deciding, that King's third party custody is "punishment" for purposes of the double jeopardy clause, his argument fails. The double jeopardy clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. Garrett v. United States, 471 U.S. 773, 793 (1985) (citing Missouri v. Hunter, 459 U.S. 359, 366 (1983)). The substantive power to prescribe crimes and determine punishments is vested with the legislature, and the question under the double jeopardy clause whether punishments are "multiple" is essentially one of legislative intent. Ohio v. Johnson, 467 U.S. 493, 499 (1984). Because the Arizona courts have determined that the state legislature intended "custody" under Ariz.Rev.Stat. Sec. 13-709(B) to include only actual incarceration time, or time otherwise spent in the control of jail or prison officials, this is not a case involving "multiple" punishments. See State v. Vasquez, 153 Ariz. 320, 321-22, 736 P.2d 803, 804-05 (Ct.App.1987). This court is bound by a state court's construction of the laws of that state. Mullaney v. Wilbur, 421 U.S. 684, 690-91 (1975); Gentry v. MacDougall, 685 F.2d 322, 323 (9th Cir. 1982). There is no double jeopardy violation because the state fully intended the result of which King now complains.

DUE PROCESS

Although federal courts have no jurisdiction to hear habeas petitions alleging only state law interpretations, some violations of state law may implicate federally-protected rights. See Whalen v. United States, 445 U.S. 684, 689-90 n. 4 (1980) (the due process clause of the Fourteenth Amendment "would presumably prohibit the state courts from depriving persons of liberty or property as punishment for criminal conduct except to the extent authorized by state law"); Hicks v. Oklahoma, 447 U.S. 343 (1980) (failure of a state court to afford the petitioner sentencing by jury, as required by state statute, constituted a denial of due process). For this reason, we may consider King's arguments on the interpretation of Ariz.Rev.Stat. Sec. 13-709(B) to the extent that they substantiate his federal due process claims. Guzman v. Morris, 644 F.2d 1295, 1297-98 (9th Cir. 1981).

King essentially makes two due process claims, alleging that the state deprived him of a liberty interest by: 1) its failure to credit his sentence as required by its own statute; and 2) its arbitrary interpretation of the phrase "custody."

An indispensable element of any due process claim is a constitutional or statutory entitlement. Board of Regents v. Comm'n, 408 U.S. 564, 569 (1972); Myers v. United States Parole Comm'n, 813 F.2d 957 (9th Cir. 1987). Liberty interests protected by the Fourteenth Amendment may arise from two sources--the Due Process Clause itself and the laws of the states. Hewitt v. Helms, 459 U.S. 460, 466 (1983); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987). There is no constitutional right to credit for time spent in jail prior to trial and sentencing. Lewis v. Cardwell, 609 F.2d 926, 928 (9th Cir. 1979); Gray v. Warden of Montana State Prison, 523 F.2d 989, 990 (9th Cir. 1975). But when the state itself creates a statutory right, it also creates a liberty interest protected by the Fourteenth Amendment. Haygood v. Younger, 769 F.2d 1350, 1355-56 (9th Cir. 1985), cert. denied, 478 U.S. 1020 (1986). Where a statute or regulation uses mandatory language, a protectable entitlement arises, whether it is an entitlement to release from prison at a particular time, see Baumann v. Arizona Dep't of Corrections, 754 F.2d 841, 844 (9th Cir. 1985), good time credits, see McFarland v. Cassady, 779 F.2d 1426, 1428 (9th Cir. 1986) or pre-sentence credit. The mandatory "shall" language of Ariz.Rev.Stat. Sec. 13-709(B) gives King a liberty interest protectable under the due process clause.

Despite having a protectable liberty interest, both of King's due process arguments fail. On his first claim, King is unable to show that the state violated its own statute by refusing to credit his sentence. The Arizona courts have defined "custody" for purposes of Ariz.Rev.Stat. Sec. 13-709(B) as time actually spent in a county jail, in prison, or while in the "actual or constructive control of jail or prison officials." State v. Vasquez, 153 Ariz. 320, 321, 736 P.2d 803, 804 (Ct.App.1987). A pretrial supervision officer is not a jail or prison official for purposes of determining credit under the statute. Id. at 321, 736 P.2d at 804. The Arizona courts are unwilling to extend the language of Ariz.Rev.Stat. Sec. 13-709(B) to other circumstances. Id. at 322, 736 P.2d at 805. Because King spent no time in "custody" as defined by the Arizona courts, he was not entitled to the statute's protection, and suffered no violation of due process rights.

King's second claim, that the state arbitrarily defined "custody" in violation of his rights, is similarly without merit. King alleges no facts indicating the statute has been interpreted or enforced in an arbitrary or discriminatory manner. The word "custody" may be given different meanings when used in different statutes, to achieve the intended effect of each particular law. This is not an indication of arbitrariness.

EQUAL PROTECTION

King also asserts a violation of equal protection, generally arguing that he was treated differently from those released on their own recognizance, those on probation and parole, and the public at large. Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made. United States v. Savinovich, 845 F.2d 834, 839 (9th Cir.), cert. denied, --- U.S. ----, 109 S. Ct. 369 (1988) (citing Baxstrom v. Herold, 383 U.S. 107, 111 (1966)). The inquiry then becomes whether the classification is irrational or unreasonable. Id.

The only distinction Ariz.Rev.Stat. Sec. 13-709(B) makes is between those who have spent time in actual incarceration or in the custody of jail or prison officials prior to sentencing, and those who have not (such as those released on their own recognizance, or released to the custody of a third party). The state has an interest in treating convicted persons fairly, and also has a legitimate policy interest in the public perception of the fairness of the criminal justice system. The restraint on an individual's freedom caused by incarceration is certainly more severe than the conditions imposed on King. In addition, incarceration is more punitive in nature. The conditions and severity of pre-sentence "custody" are reasonably related to both the calculation of subsequent sentences and to the public's perception of how the criminal system is working. The classification is reasonable; King's equal protection claim is without merit.

APPOINTMENT OF COUNSEL

King's final contention is that the district court should have appointed counsel to assist him in his habeas petition. A district court has the discretion to appoint counsel, and should evaluate the likelihood of success on the merits as well as the petitioner's ability to articulate his claims pro se in light of the complexity of the issues. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). In view of the facts of this case, and the improbability of King's success with or without counsel, the judge's refusal to appoint counsel was not an abuse of his discretion.

AFFIRMED.