Unpublished Disposition, 917 F.2d 566 (9th Cir. 1990)

MEMORANDUM^** 

Leonard L. Montoya, an Arizona state prisoner, appeals pro se the district court's order dismissing his 28 U.S.C. § 2254 habeas petition. Montoya contends that the denial of presentence incarceration credit violates his right to due process. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and affirm.

While serving concurrent prison terms of 15 and 10 years for aggravated assault and theft, Montoya pled guilty to attempting to promote prison contraband. In his habeas petition, Montoya sought credit for the time he spent in custody before sentencing on the prison contraband offense. The state court found that under Arizona law, Montoya was not entitled to credit for that time because he already was incarcerated on unrelated offenses.

The district court properly dismissed Montoya's habeas petition because there is no federal constitutional right to presentence incarceration credit. Lewis v. Cardwell, 609 F.2d 926, 928 (9th Cir. 1979). Moreover, Montoya's contention that the state court misinterpreted Arizona law in denying him presentence credit does not present a federal constitutional question cognizable in a habeas petition. See Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).

AFFIRMED.