FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se. In accordance with the court's December 10, 2008 order, petitioner has filed an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee.
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. . . ." Rule 4, Rules Governing Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus at several stages of a case, including "summary dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the answer and petition are considered; or a dismissal after consideration of the pleadings and an expanded record."
Moreover, the Ninth Circuit has held that a district court may dismiss sua sponte a habeas petition on the grounds that it is untimely under the statute of limitations so long as the court provides the petitioner adequate notice of its intent to dismiss and an opportunity to respond. See Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir. 2001). These findings and recommendations are intended to notify petitioner of the court's intention to dismiss the instant petition in part because it is untimely under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). If petitioner desires to respond and demonstrate to the court that he has filed this action within the applicable statute of limitations or is eligible for tolling of the limitations period, he may do so by filing objections to these findings and recommendations.
Petitioner commenced this action by filing a petition for writ of habeas corpus, claiming that the California state courts "failed to give any opinion in their denials of his petition for writ of habeas corpus" thereby violating his rights under the Eighth Amendment, the Fourteenth Amendment, and state law. On October 20, 2008, the undersigned issued findings and recommendations, recommending dismissal of this action because there is no federal constitutional prohibition preventing state courts from disposing of post-conviction claims in a summary fashion. On November 6, 2008, petitioner filed objections to the findings and recommendations. Therein, he claimed that he was erroneously advised that "all I had to do to get federal review of all my claims was to cite the first claim in my state petition and attach it to the federal petition." The court presumed that petitioner believed that the other claims he asserted in his state habeas petition would be incorporated into his federal petition through attachment thereto. Accordingly, good cause appearing, the court vacated its findings and recommendations which recommended dismissal of the federal petition and granted petitioner thirty days leave to file an amended petition that set forth all of the claims he wished to present to this court. On January 15, 2009, petitioner filed an amended petition.
In his amended petition, petitioner claims that the Sacramento County Superior Court sentenced him under the "serious felony" provision of California Penal Code § 1192.7. However, petitioner alleges, on October 20, 2003, he learned that California Department of Corrections and Rehabilitation records indicate that the trial court sentenced him under the "violent felony" provision of California Penal Code § 667.5(c). Under California Penal Code § 2933.1, a prisoner accrues no more than 15 percent of work-time credits if he was convicted of a felony offense in § 667.5(c). Petitioner contends that he is not able to properly earn credits because of the restrictions on violent felons. He claims that his Eighth and Fourteenth Amendment rights have been violated, and he asks the court to correct "his sentencing court order." (Am. Pet. at 5.)
I. The Petition Fails to State a Claim for Relief
To the extent that petitioner claims that the trial court erred in its interpretation or application of state sentencing law, petitioner fails to state a cognizable claim for federal habeas relief. A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). In this regard, even if petitioner could demonstrate that the trial court erred in its interpretation or application of state sentencing law, he would not be entitled to relief under § 2254. Habeas corpus may not be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. Cal., 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085; see also Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) ("Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief."); Fetterly v. Paskett, 997 F.2d 1295, 1300 (9th Cir. 1993) (issues involving state sentencing error are not cognizable on habeas review).
II. The Petition is Untimely
To the extent that petitioner challenges the execution of his sentence, he has failed to allege or demonstrate how the California Department of Corrections and Rehabilitation's restrictions on his ability to earn work-time credits violates his rights under the United States Constitution or federal law. Moreover, even assuming for the sake of argument that petitioner's challenge to the ...