(HC) Edwards v. Swarthout, No. 2:2013cv01651 - Document 7 (E.D. Cal. 2013)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/06/13 granting 2 Motion to Proceed IFP. Also,RECOMMENDING that this action be summarily dismissed pursuant to Rule 4 of the rules governing habeas corpus cases pursuant to 28 USC 2254. Referred to Judge William B. Shubb. Objections due within 14 days. (Plummer, M)

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(HC) Edwards v. Swarthout Doc. 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID E. EDWARDS, 12 Petitioner, 13 14 No. 2:13-cv-1651-WBS-EFB P v. GARY SWARTHOUT, 15 ORDER GRANTING IFP AND FINDINGS AND RECOMMENDATIONS TO SUMMARILY DISMISS THE PETITION Respondent. 16 17 Petitioner, a state prisoner proceeding though counsel, has filed a petition for a writ of 18 habeas corpus.1 See 28 U.S.C. § 2254. Petitioner’s sole claim for relief is that the California 19 Department of Corrections and Rehabilitation (CDCR) has unconstitutionally applied the credit 20 limitation of California Penal Code § 2933.1 to his sentence in violation of his Fourteenth 21 Amendment right to due process. See Petition, ECF No. 1. The court has reviewed the petition 22 as required by Rule 4 of the Rules Governing Section 2254 Proceedings, and finds that it must be 23 summarily dismissed. See Rule 4, Rules Governing § 2254 Cases (requiring summary dismissal 24 of habeas petition if, upon initial review by a judge, it plainly appears “that the petitioner is not 25 entitled to relief in the district court”). 26 ///// 27 28 1 Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. 1 Dockets.Justia.com 1 The question of whether CDCR has or has not properly limited petitioner’s accrual of 2 work credits is not cognizable as a claim for federal habeas relief, as it is not the role of the 3 federal habeas court to clarify or correct the application of state law. See Estelle v. McGuire, 502 4 U.S. 62, 67 (1991) (“We have stated many times that federal habeas corpus relief does not lie for 5 errors of state law”) (internal quotations omitted); see also Craft v. Gower, No. 2:12-cv-2827- 6 DAD, 2013 U.S. Dist. LEXIS 134333, at *7-8 (E.D. Cal. Sept. 18, 2013) (summarily dismissing 7 petitioner’s claim that that CDCR had erroneously applied § 2933.1 to his case); Cochran v. Diaz, 8 No. 1:13-cv-00551-AWI-GSA, 2013 U.S. Dist. LEXIS 109156, at *3-4 (E.D. Cal. Aug. 2, 2013) 9 (“Petitioner states that the CDCR has determined that he cannot earn good time credits against his 10 sentence pursuant to Cal. Penal Code § 2933, because Petitioner committed crimes which do not 11 allow for the earning of such credits . . . . The essence of Petitioner’s claim concerns the 12 interpretation and application of state statute, and generally, issues of state law are not cognizable 13 on federal habeas.”). 14 Furthermore, petitioner does not have a protected liberty interest in earning worktime 15 credits to reduce his sentence. See California Penal Code § 2933(c) (“Credit is a privilege, not a 16 right.”); Kalka v. Vasquez, 867 F.2d 546, 547 (9th Cir. 1989) (“[S]ection 2933 does not create a 17 constitutionally protected liberty interest.”). Therefore, despite petitioner’s framing of his claim 18 as a violation of his right to due process under the Fourteenth Amendment, it is subject to 19 summary dismissal. See Craft, 2013 U.S. Dist. LEXIS 134333 at *8-9 20 21 22 23 Accordingly, it is hereby ORDERED that petitioner’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. Further, it is hereby RECOMMENDED that this action be summarily dismissed pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases Under 28 U.S.C. § 2254. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 26 after being served with these findings and recommendations, any party may file written 27 objections with the court and serve a copy on all parties. Such a document should be captioned 28 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 2 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 3 his objections petitioner may address whether a certificate of appealability should issue in the 4 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 5 Section 2254 Cases (the district court must issue or deny a certificate of appealability when it 6 enters a final order adverse to the applicant). 7 Dated: November 6, 2013. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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