The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER ADOPTING THE REPORT AND RECOMMENDATION [doc. #12]; OVERRULING OBJECTIONS [doc. #13];DENYING PETITION FOR WRIT OF HABEAS CORPUS [doc. #1]; and DIRECTING ENTRY OF JUDGMENT
On September 20, 2006, petitioner Aryan W. Duntley filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. Respondents filed their response to the petition on November 21, 2006. The Honorable Louisa S. Porter issued a Report and Recommendation ("Report") pursuant to 28 U.S.C. § 636(b) recommending the petition be denied. Petitioner filed objections to the Report.
The district court's role in reviewing a Magistrate Judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna- 06cv2026 , 328 F.3d 1114, 1121 (9th Cir.) (en banc), cert. denied, 124 S.Ct. 238 (2003); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003)(applying Reyna-Tapia's holding to a habeas corpus proceeding).
Petitioner was convicted of voluntary manslaughter in the Superior Court for the State of California, County of San Diego, and sentenced to eleven years in the state prison system. (Respondents' P&As at 1). Duntley appealed the conviction but the California appellate court affirmed. Thereafter, petitioner sought to obtain post-sentence worktime credits at a rate of fifty percent instead of fifteen percent. Each time he sought the fifty percent worktime credit on his sentence either administratively or through the courts, petitioner was unsuccessful. Petitioner now seeks habeas corpus relief in the federal court on this claim only.
Petitioner has consistently argued that his due process right is violated because the state courts have misconstrued the applicable statutes and have ignored the legislative history of those statutes. As a result, petitioner has submitted an objection to the Report contending the magistrate judge erred in applying section 2933.1 to people, like himself, who are not repeat offenders.
The relevant statutes are California Penal Code section 2933.1 and 667.5. Section 2933.1 concerns the accrual of worktime credits and provides in part:
(a) Notwithstanding any other law, any person who is convicted of a felony offense listed in Section 667.5(c), shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.
AL. PENAL CODE § 2933.1 (emphasis added).*fn1 There is nothing in section 2933.1 that specifies that it is applicable only to repeat offenders or only to first-time offenders.
Section 667.5 is directed to enhancement of prison terms for new offenses when there have been prior prison terms and one of the new offenses is a violent felony listed in subdivision (c). CAL. PENAL CODE § 667.5 (emphasis added). Subsection c lists 23 offenses that are considered crimes of violence. Id. ("The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society's condemnation for these extraordinary crimes of violence against the person). One of those listed offenses is voluntary manslaughter which is the crime for which petitioner was convicted. Id. at (c)(1).
Petitioner contends that neither section 2933.1 nor 667.5 is applicable to him but rather section 2933 is the proper statute under which he is entitled to 50 percent worktime credit. Petitioner asserts that by failing to apply his earned credit at the 50 percent level and instead providing him with only 15 percent earned worktime credit, his liberty and due process rights are being violated.
If petitioner were convicted of an "ordinary" crime rather than a violent crime, section 2933 would be applicable. But the Legislature also enacted section 2933.1 which is directed to "Violent felonies; worktime credit; ...