Khine Mye (Brian) Aung v. Jeffrey Beard, No. 8:2014cv00909 - Document 19 (C.D. Cal. 2014)
Court Description: MEMORANDUM AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS by Magistrate Judge Andrew J. Wistrich. (mz)
Download PDF
<![CDATA[
Khine Mye (Brian) Aung v. Jeffrey Beard Doc. 19 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 SOUTHERN DIVISION 10 11 KHINE MYE (BRIAN) AUNG, CASE NO. SACV 14-909-AJW 12 MEMORANDUM AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS 13 14 15 ) ) Petitioner, ) ) v. ) ) JEFFREY BEARD, ) ) Respondent. ) ________________________________) 16 17 On January 15, 2010, petitioner pleaded guilty to one count of 18 first degree robbery in concert (Cal. Penal Code §§ 211, 212.5(a), 19 213(a)(1)) and admitted the allegation that he personally used a firearm 20 in the commission of the offense (Cal. Penal Code § 12022.53(b)). 21 [Lodged Document (“LD”) 1]. He was sentenced to state prison for a term 22 of 13 years. [LD 3]. 23 On June 17, 2014, petitioner filed this petition for a writ of 24 habeas corpus. Petitioner alleges that he is entitled to earn six months 25 of credit against his sentence for each six months he served in custody 26 (“50% credit”) under California Penal Code § 2933. According to 27 petitioner, the California Department of Corrections and Rehabilitation 28 (“CDCR”) erroneously applied California Penal Code § 2933.1 to him, Dockets.Justia.com 1 thereby limiting his eligibility to earn credit to a rate of no more 2 than 15% of the time served. Petitioner argues that the misapplication 3 of § 2933.1 to him has deprived him of due process. [Petition at 5B]. 4 Respondent filed an answer to the petition, and petitioner filed a 5 reply.1 6 A federal court may not grant a writ of habeas corpus on behalf of 7 a person in state custody 8 with respect to any claim that was adjudicated on the merits 9 in state court proceedings unless the adjudication of the 10 claim (1) resulted in a decision that was contrary to, or 11 involved an unreasonable application of, clearly established 12 Federal law, as determined by the Supreme Court of the United 13 States; or (2) resulted in a decision that was based on an 14 unreasonable determination of the facts in light of the 15 evidence presented in the state court proceeding. 16 28 U.S.C. § 2254(d). “Clearly established federal law” for purposes of 17 § 2254(d)(1) includes only “the holdings, as opposed to the dicta, of 18 th[e Supreme] Court's decisions.” Howes v. Fields, 565 U.S. ___, 132 19 S.Ct. 1181, 1187 (2012) (internal quotation marks and citation omitted). 20 Petitioner’s claim was rejected by the California Superior Court, 21 which explained: 22 Conduct credit is a privilege and not a right. (Pen. Code, § 23 2933(c).) Prisoners generally do not have a constitutional 24 right to good conduct credits. (In re Johnson (2009) 176 25 1 26 27 28 Respondent argues that the petition is untimely. [Answer at 25]. Because petitioner is not entitled to relief on the merits of his claim, the Court need not decide the procedural issue. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997)(explaining that a district court may address merits without reaching procedural issues when doing so best serves the interest of judicial economy). 2 1 Cal.App.4th 290, 297; In re Bothwell (2008) 164 Cal.App.4th 2 160, 165.) 3 classified as a violent felony. (Pen. Code § 667.5(c)(9).) 4 defendant convicted of a violent felony shall accrue no more 5 than 15% conduct credit. (Pen. Code, § 2933.1(a).) 6 2933.1's purpose is to protect the public from dangerous 7 repeat offenders who otherwise would be released from prison. 8 (People v. Marichalar (2003) 144 Cal.App.4th 1331, 1337.) 9 violation of petitioner’s constitutional right to due process 10 Petitioner stands convicted of robbery which is A Section No is established. 11 [LD at 2].2 12 Petitioner’s claim fails for several reasons. To begin with, 13 federal habeas corpus relief is not available for alleged errors in the 14 interpretation or application of state law. 15 limited to deciding whether the petitioner Rather, the Court is has been convicted or 16 sentenced in violation of the Constitution, laws, or treaties of the 17 United States. Swarthout v. Cooke, 131 S.Ct. 859, 861 (2011); Estelle 18 v. McGuire, 502 U.S. 62, 67-68 (1991). Thus, to the extent that 19 petitioner’s claim merely challenges the proper interpretation of state 20 law, he is not entitled to relief. 21 Petitioner contends that he was denied due process because he was 22 deprived of his right to earn 50% credit without being provided a 23 hearing and without proof that he violated prison rules. [Petition at 24 5B; Reply at 3-4]. In support of his claim, petitioner cites Wolff v. 25 2 26 27 28 Both the California Court of Appeal and California Supreme Court summarily denied petitioner’s claim. [LDs 7, 9]. Accordingly, the Court “looks through” the higher courts’ summary denials to the last reasoned decision by a state court. See Cannedy v. Adams, 706 F.3d 1148, 1158-1159 (9th Cir. 2013) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)), cert. denied, 134 S.Ct. 1001 (2014). 3 1 McDonnell, 418 U.S. 539 (1974). Wolff involved prison disciplinary 2 proceedings in which a prisoner lost good time credits that he had 3 previously accrued and earned. In that situation, the Supreme Court held 4 that prisoners are entitled to minimal due process protections (i.e., 5 notice of the disciplinary charges, an opportunity to present evidence, 6 and a statement of reasons) to protect their interest in 7 previously-earned credits. Wolff, 418 U.S. at 463-464. No Supreme Court 8 authority has extended Wolff’s due process protections to a prisoner's 9 interest in unearned, potential future credits or in accruing credits at 10 a specific rate. Given the absence of Supreme Court authority, 11 petitioner cannot demonstrate that the state court’s rejection of his 12 claim amounted to an unreasonable application of clearly established 13 federal law. See Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) 14 (“[T]his Court has held on numerous occasions that it is not an 15 unreasonable application of clearly established Federal law for a state 16 court to decline to apply a specific legal rule that has not been 17 squarely established by this Court.”) (internal quotation marks 18 omitted)); Carey v. Musladin, 549 U.S. 70, 77 (2006) (“Given the lack of 19 holdings from this Court ... it cannot be said that the state court 20 unreasonably applied clearly established Federal law.”) (internal 21 quotation marks and alterations omitted)); see also Franklin v. Knowles, 22 428 Fed.App'x 777, 778 (9th Cir. 2011) (concluding that the state 23 court's denial of a due process challenge to California’s credit accrual 24 statute “was neither contrary to, nor an unreasonable application of, 25 clearly established federal law [because] California prisoners do not 26 have a protected liberty interest in earning work time credits.”); 27 Poutre v. Lea, 2011 WL 7708735, at *6 (C.D.Cal. 2011) (stating that the 28 prisoner “possessed no liberty interest in receiving conduct credits” 4 1 and that the state's “purported denial of petitioner's ‘right’ to 2 serve less than eighty percent of his sentence through an accrual of 3 conduct credits cannot be construed as a deprivation of due process”); 4 Cochran v. Diaz, 2013 WL 3991991, at *2 (E.D.Cal. 2013) (“Although 5 inmates have a liberty interest in good time credit they have already 6 earned, see [Wolff], no such interest has been recognized in the 7 opportunity to earn good time credit.”). 8 To the extent that petitioner might be contending that he was 9 deprived of due process because the application of state law was 10 arbitrary and capricious, his claim also fails. Section 2933.1(a) of 11 the California Penal Code provides that, “[n]otwithstanding any other 12 law, any person who is convicted of a felony offense listed in 13 subdivision (c) of Section 667.5 shall accrue no more than 15 percent 14 of worktime credit, as defined in Section 2933.” Section 667.5(c) 15 lists the offenses that the legislature has determined constitute 16 “violent felonies,” including petitioner's robbery offense and use of 17 a firearm enhancement. As a matter of state law, the 15% rate in § 18 2933.1 expressly overrides the credit accrual rule in § 2933 or any 19 other statute. See, e.g., In re Martinez, 30 Cal.4th 29, 34–35 (2003) 20 (explaining the operation of the sentencing and credit statutes). In 21 light of the relevant California statutes, petitioner cannot show that 22 the state court’s determination that he was not entitled to earn 50% 23 credits was erroneous under state law,3 let alone arbitrary or 24 25 26 27 28 3 Petitioner apparently believes that § 2933.1 of the California Penal Code is limited to recidivists [Reply at 2-3], but nothing in the statute or the case law applying it supports such a reading. His argument is based upon the California Superior Court’s recitation of the legislature purpose of § 2933.1 – namely, that it was intended to “protect the public from dangerous repeat offenders.” [LD 5 at 2]. The Superior Court’s statement, however, is better read as summarizing the 5 1 capricious. See Franklin, 428 Fed.Appx. at 778 (“To the extent 2 Franklin's claims concern other credits which do implicate a protected 3 liberty interest, the state court's interpretation of California law 4 was not ‘so unexpected as to violate due process.’”) (quoting Gollehon 5 v. Mahoney, 626 F.3d 1019, 1023 n. 5 (9th Cir. 2010), cert. denied, 6 132 S.Ct. 196 (2011)); see generally Hubbart v. Knapp, 379 F.3d 773, 7 779 (9th Cir. 2004) (federal habeas corpus relief for errors in the 8 application of state law is available only if the state court's 9 misapplication of state law was arbitrary and capricious, and thus 10 violated federal due process). 11 For the foregoing reasons, the petition for a writ of habeas 12 corpus is denied. 13 It is so ordered. 14 15 Date: December 15, 2014 16 17 18 _________________________________ Andrew J. Wistrich United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 overarching legislative intent behind the large set of provisions limiting the availability of credits to different groups of prisoners – including violent felons, murderers, and repeat offenders, among others. See Cal.Penal Code §§ 2933.1, 2933.2, 2933.5; In re Martinez, 30 Cal. 4th 34-35 & n. 5 (setting out the different limitations on earning credits under California law, including, “[a] nonviolent offender may receive a credit up to 50 percent of her actual presentence confinement”; a nonviolent offender with no strikes “may earn 100 percent credit postsentence (one day of conduct credit for each day actually served)”; “a recidivist with a prior strike may earn postsentence credits only up to 20 percent of the total prison sentence”; “an offender with two prior strikes is denied any postsentence conduct credit”; “[v]iolent felons receive ... 15 percent credit”; and “convicted murderers receive no credit at all”). Petitioner’s attempt to convert the Superior Court’s statement into an interpretation of the statute is unpersuasive.
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
