Unpublished Disposition, 880 F.2d 1323 (9th Cir. 1986)

MEMORANDUM^** 

In California Superior Court, Johnaton George ("George" or "appellant") was convicted of state crimes and sentenced to consecutive terms of five years to life and two terms of three years to life. George also received a parole term of one year to be served upon completion of this sentence. While he was serving his first prison term, George was convicted of additional crimes in California Superior Court for which he received a two-year sentence to run concurrently with the sentence on his first conviction. He also received a parole term of three years, to begin with his release from prison. George's concurrent two-year sentence was completed on November 21, 1982, but George remained in prison serving the three consecutive terms of his original sentence until January 24, 1985 when he was released on parole.

George's parole was revoked and he was returned to prison on February 26, 1986. On March 25, 1986, he initiated a habeas corpus action in the state courts of California which he ultimately appealed to the state Supreme Court, which denied his petition. He then filed this habeas corpus petition in federal court claiming that the three year parole term on his second conviction began to run while he was in prison completing his sentence on his first conviction and therefore he deserved credit for the time he was in prison while this term was running. He also alleged that this extension violated his fifth and fourteenth amendment due process rights. Appellant has since been again released on parole, rearrested for violating it, and is now back on parole a third time.¹  The district court denied the petition on the ground that George failed to state a federal claim. George timely appeals.

* This court reviews the district court's denial of a habeas corpus petition de novo. Dunckhurst v. Deeds, 859 F.2d 110, 112 (9th Cir. 1988). A pro se litigant's pleadings should be liberally construed. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (liberal construction of pro se pleadings in a civil rights case). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

II

George's habeas corpus petition alleges, in part, that California illegally extended his parole terms. This allegation is based solely on California statutes. Our court has stated that " [a] petition for habeas corpus will be entertained only on the ground that the person in custody is being held in violation of the Constitution or laws or treaties of the United States." Dunckhurst, 859 F.2d at 112 (citing 28 U.S.C. § 2254(a)). George does not allege that the sentencing violated the Constitution, laws or treaties of the United States; therefore, this claim in his petition was properly denied.

George's allegation that his fifth and fourteenth amendment due process rights were violated also lack merit. An indispensable element of any due process claim is a constitutional or statutory entitlement arising from the due process claim itself or the laws of the states. See Board of Regents v. Roth, 408 U.S. 564, 569 (1972); Hewitt v. Helms, 459 U.S. 460, 466 (1983). There is no constitutional right to parole, see id. at 467, and California statutes do not permit a prisoner to serve a parole term while still in prison. In re Wilson, 30 Cal. 3d 438, 442, 637 P.2d 674 (1981). Therefore, we affirm the district court's denial of George's habeas corpus petition.

AFFIRMED.