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Smith v. Lockyer


October 12, 2005


The opinion of the court was delivered by: Claudia Wilken United States District Judge



Petitioner Robert Smith filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on October 23, 2002, when he was incarcerated at Centinela State Prison. In June, 2003, Petitioner was released on parole and he currently resides in Los Angeles, California. In an Order dated September 29, 2004, the Court denied Respondent's motion to dismiss the petition as unexhausted and directed Respondent to show cause why relief should not be granted. Respondent has filed an answer to the petition along with a memorandum of points and authorities and exhibits in support thereof. Although granted the opportunity to do so, Petitioner has not filed a traverse. For the reasons discussed below, the Court denies this petition.


On April 16, 1999, Petitioner filed a petition for a writ of habeas corpus in this Court, Smith v. Lindsey, C 99-1895 CW, seeking restoration of good time credits that had been ordered forfeited based on two Division A offenses Petitioner committed while in custody. On June 15, 1999, the Court dismissed the action without prejudice as unexhausted because Petitioner had not presented his claims to the State's highest court for decision. On June 7, 2000, Petitioner filed a new petition for a writ of habeas corpus in this Court, Smith v. Lamarque, C 00-2056 CW, presenting the same claims and alleging that they had been presented to the California Supreme Court for review. In an Order dated June 20, 2001, this Court concluded that Petitioner's claims remained unexhausted because the California Supreme Court's citation to In re Dexter, 25 Cal. 3d 921, 925 (1979), meant that the court had not reviewed Petitioner's claims because he had not exhausted his prison administrative remedies. The Court also found that the credit restoration claim Petitioner presented to the California Supreme Court alleged only a violation of State, not federal, law. The Court dismissed the petition without prejudice, explaining to Petitioner that he must exhaust all of his prison administrative appeals and present all of his federal claims to the California Supreme Court before returning to federal court.

In January, 2001, Petitioner filed a first level administrative appeal seeking credit restoration. When the appeal was denied Petitioner presented his claim for second level administrative review. When Petitioner was informed by prison officials on June 20, 2001, that his second level response would be delayed indefinitely, he filed a State petition for a writ of habeas corpus in Monterey County Superior Court, asking the court to waive exhaustion due to delay and futility and to rule on the merits. In an order dated September 6, 2001, the court agreed to waive exhaustion and denied the petition on the merits.

However, on September 25, 2001, Petitioner's second level appeal was partially granted; it was determined that he was entitled to receive twenty-five percent of the credit restoration he was seeking. He was told that at his next classification hearing his case would be reviewed and this restoration of credits allowed. He was also told that the issue could be submitted for Director's Level (third level) review. Petitioner submitted a third level appeal on October 18, 2001, arguing that he was entitled to fifty percent restoration of lost credits for his Division A1 offense and 100 percent restoration of lost credits for his Division A2 offense. On November 21, 2001, the appeal was rejected and Petitioner was told that it was being returned to him "until the completion of the rehearing or modification order. If you are still dissatisfied when that hearing has been completed, you may then resubmit the appeal to this office within 15 working days of the final decision." (Petition, Ex. F.)

On June 13, 2002, Petitioner filed with the California Supreme Court a habeas petition in which he stated that his credits had still not been restored and therefore he was unable to proceed with exhaustion of his administrative remedies. He argued that because the administrative remedy was inadequate and restoration of all credits would entitle him to release on parole on September 20, 2002, exhaustion should be excused and the court should rule on his claim that failure to restore the credits amounted to a violation of due process under the Fourteenth Amendment and State law. The petition was denied without citation or comment on October 2, 2002.

In the present petition, Petitioner seeks to restore one hundred percent of the 180 days lost due to his Division A2 offense and fifty percent of the 360 days lost due to his Division A1 offense. He claims that the California Department of Corrections (CDC) erroneously interpreted the "stacking" procedure of Administrative Bulletin (A/B) Number 95/12 by applying a one-time twenty-five percent credit restoration per offense. Petitioner claims that, instead, the CDC should have aggregated multiple disciplinary-free periods (four periods for his Division A2 and two periods for his Division A1 offense) and added up the allowable twenty-five percent restoration per period.


I. Standard of Review

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 claims: "(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." 28 U.S.C. § 2254(d).

To determine whether habeas relief is warranted, a federal court looks to the decision of the highest State court to address the merits of a petitioner's claim in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000); see Packer v. Hill, 291 F.3d 569, 578-79 (9th Cir. 2002) (where State supreme court denied habeas petition without comment federal court looks to last reasoned decision of a State court as the basis of the State court's judgment), rev'd on other grounds by Early v. Packer, 537 U.S. 3 (2002). In the present case, Petitioner's claims were not addressed in State court in a reasoned decision. Rather, they were denied summarily by the California Supreme Court on habeas corpus. Where the State court gives no reasoned explanation of its decision on a petitioner's federal claim and there is no reasoned lower court decision on the claim, a review of the record is the only means of deciding whether the State court's decision was objectively reasonable. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). When confronted with such a decision, a federal court should conduct "an independent review of the record" to determine whether the State court's decision was an unreasonable application of clearly established federal law. Id.

Even if the State court's ruling is contrary to or an unreasonable application of Supreme Court precedent, that error justifies habeas relief only if the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

II. Legal Claims

Petitioner claims that his due process rights were violated in that he is entitled to more than the twenty-five percent credit restoration he received. A State prisoner whose time credits have been computed improperly may have a claim for the denial of due process, see Haygood v. Younger, 769 F.2d 1350, 1355-58 (9th Cir. 1985) (en banc), which generally may only be remedied by way of a petition for a writ of habeas corpus, see Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990); accord Toussaint v. McCarthy, 801 F.2d 1080, 1096 n.14 (9th Cir. 1986).

The Fourteenth Amendment does not guarantee State prisoners a particular method of calculating prison sentences. See Wolff v. McDonnell, 418 U.S. 539, 557 (1974). But when the State itself creates a statutory right to release from prison, the State also creates a liberty interest and must provide minimum due process appropriate to the circumstances to ensure that liberty is not arbitrarily abrogated. Vitek v. Jones, 445 U.S. 480, 488-89 (1980). See Meachum v. Fano, 427 U.S. 215, 226 (1976). Based on the information disclosed in Petitioner's State and federal petitions, the credit restoration rule in effect at the time Petitioner's credits were forfeited created a cognizable liberty interest because it created an entitlement to restoration of good time credits forfeited for Division A offenses if a prisoner remained discipline-free for a prescribed period (absent an express finding of exceptional circumstances following a hearing). See Cal. Code Regs. tit. 15, §§ 3327-28 (as reprinted in Warden's decision, see Petition, Ex. B).

However, even though Petitioner had a liberty interest in the restoration of his credits, he will not be entitled to the writ if he received all the process to which he was entitled under federal law. "Adequate, or due, process depends upon the nature of the interest affected." Haygood, 769 F.2d at 1355. "The more important the interest and the greater the effect of its impairment, the greater the procedural safeguards the state must provide to satisfy due process." Id. at 1355-56. Due process in Petitioner's case required the State to provide him with a "meaningful hearing at a meaningful time." See id. at 1356.

Here, the State gave Petitioner repeated and timely opportunities to be heard. In less than a year, from January 1, 2001 to November, 21, 2001, Petitioner's claim seeking credit restoration was addressed at three levels of the administrative appeals process. On September 6, 2001, while Petitioner's second level appeal was pending, the State court waived the exhaustion of further administrative remedies and reviewed Petitioner's writ on the merits. One year later, the California Supreme Court reviewed Petitioner's habeas petition and denied it on October 2, 2002. Therefore, in less than two years from when Petitioner filed his first level administrative appeal in January, 2001, both the CDC and the State courts had consecutively reviewed Petitioner's allegations, thereby providing him with hearings within a "meaningful time" period. See id.

Moreover, Petitioner was afforded a "meaningful hearing," id., because the CDC applied the correct regulations and computed the amount of credit restoration to which Petitioner was entitled reasonably. In 1989 and 1992, when Petitioner's prison offenses were committed, California Penal Code section 2933(c) provided that CDC regulations shall specify "the percentage of forfeited credits that may be restored" to a prisoner who lost credits as punishment for having committed certain offenses while in prison. For credits forfeited for such offenses, "the Department of Corrections may provide that up to 180 days of lost credit shall not be restored." Id. The implementing regulation at the time, former section 3328(a) of the California Code of Regulations, Title 15, provided, "An inmate may apply for restoration of twenty-five percent of any credit forfeited for a Division 'A' offense if: (1) The inmate has remained discipline free for one year . . . ." See also In re Mikhail, 70 Cal. App. 4th 333, 338 (1999).

Petitioner's argument that he is entitled to more than the restored twenty-five percent of his forfeited credits is without merit. Petitioner believes that the twenty-five percent restoration allotment is a yearly allocation that has accumulated for over four disciplinary-free years in the case of his A2 offense and two disciplinary-free years in the case of his A1 offense. According to Petitioner, this should amount to one-hundred-percent restoration of the 180 days lost for his Division A2 offense and fifty-percent restoration of the 360 days lost for his Division A1 offense, totaling 360 days. In support of his interpretation, Petitioner relies on A/B Number 95/12 which defines "stacking" -- a procedure in effect before the CDC's disciplinary regulations revisions took effect on June 5, 1995. Petitioner interprets "stacking" as multiple disciplinary-free periods used to add on multiple credit restorations for one rule violation.

The CDC claims that the twenty-five percent allowance is the total permitted credit restoration and is not cumulative. Pursuant to A/B Number 95/12, "stacking" is utilizing one disciplinary-free period to restore credits from multiple rule violations. This does not allow an inmate to accumulate credit restoration percentages for one rule violation by adding up multiple disciplinary-free periods. Thus, the CDC has restored a one-time twenty-five percent of the respective lost days under Division A2 and A1 offenses (45 90 = 135 days restored).

This Court has examined A/B Number 95/12 together with the twenty-five percent credit restoration regulation pursuant to former section 3328(a), and finds that the CDC reasonably concluded that the twenty-five percent credit allowance is a one-time restoration after a mandated disciplinary-free period for each offense. As such, Petitioner was entitled to a total restoration of 135 days, which he received. He has no right to more.

Petitioner's claim that his right to due process was violated by the CDC's one-time twenty-five percent credit restoration per offense is without merit.*fn1 Because Petitioner received all the process to which he was constitutionally entitled, the State court's rejection of Petitioner's claim was not contrary to or an unreasonable application of clearly established federal law.


For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The Clerk of Court shall TERMINATE all pending motions, and shall enter judgment and close the file.


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