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JOHNSON v. KERNAN

October 5, 2005.

HOWARD EUGENE JOHNSON, Petitioner,
v.
SCOTT KERNAN, Acting Warden, Respondent.



The opinion of the court was delivered by: CHARLES BREYER, District Judge

ORDER DENYING CONSOLIDATED PETITIONS FOR A WRIT OF HABEAS CORPUS

Petitioner, a state prisoner at Mule Creek State Prison in Ione, California, seeks a writ of habeas corpus under 28 U.S.C. § 2254 claiming unconstitutional deprivation of pre-sentence custody credits. For the reasons set forth below, his consolidated petitions for a writ of habeas corpus are denied.

BACKGROUND

  On August 20, 1996, petitioner was arrested and charged with two counts of robbery (Case No. H24496). On or about September 23, 1996, while still in custody, he was "arrested" and charged with one count of murder and one count of robbery (Case No. 130929B). And on or about January 25, 1999, again while still in custody, he was "arrested" and charged with one count of attempted robbery (Case No. 134858). On February 26, 1999, petitioner entered pleas of guilty to both robbery counts in case number H24496; to voluntary manslaughter as a lesser-included offense of murder, and to the robbery count, in case number 130929B; and to the attempted robbery count in case number 134858.

  On February 18, 2000, petitioner was sentenced consecutively on all counts to 18 years and eight months in state prison. The trial court noted that petitioner had been in continuous custody since the time of his initial arrest on August 30, 1996 and awarded him 1436 days of pre-sentence custody credit. No direct appeal was taken.

  On March 1, 2000, petitioner began seeking habeas relief from the state courts claiming deprivation of all pre-sentence custody credits he is entitled to receive under California law. On September 24, 2003, the Supreme Court of California denied his final state habeas petition. The instant consolidated federal petitions for a writ of habeas corpus under 28 U.S.C. § 2254 followed.

  Per orders filed on May 13, 2004, the court found that the petitions appeared to state colorable claims for relief under § 2254, when liberally construed, and ordered respondent to show cause why a writ of habeas corpus should not be granted. After unsuccessfully moving to dismiss the petitions as untimely, respondent has not filed an answer and petitioner has filed a traverse.

  LEGAL STANDARD

  This court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A federal writ of habeas corpus may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d).

  "Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Courts's decisions but unreasonably applies theat principle to the facts of the prisoner's case. Id. at 413.

  "[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.

  The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.

  A deprivation of time credits allegedly impacting a prisoner's state sentence may generally be remedied only by way of a petition for a writ of habeas corpus under § 2254. See Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1989); ...


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