The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections pursuant to a June 18, 2001, judgment of the Superior Court of California, County of Kern, (Am. Pet., ECF No. 7.) Petitioner was sentenced to a determinate term of thirteen years in prison on conviction of performing lewd and lascivious acts on a child under age fourteen. (Id.)
On November 6, 2007, Petitioner filed a federal habeas petition which he later, on December 12, 2007, amended. Petitioner seeks relief based on the denial of work time credits under California Penal Code section 2933's allowance for day to day credit for employment in prison. On July 19, 2010, Respondent filed an answer to the petition. (Answer, ECF No. 62.) Petitioner did not file a traverse.
II. STATEMENT OF FACTS*fn1
On August 3, 2002, Petitioner was given a culinary prison work assignment. Petitioner worked full time in the position from August 3, 2002 until February 28, 2006. (Supp. to Am. Pet. at 3-4, ECF No. 8.) Petitioner asserted that he was entitled to work time credits for his employment under California Penal Code 2933, and he filed an administrative remedy appeal on March 15, 2006 regarding the credits. (Id.) On March 21, 2006, a correctional counselor responded to the appeal, stating that any qualifying credits were credited to his release date, even though no credits were provided for Petitioner's time spent working.
On April 4, 2006, Petitioner filed another administrative appeal. On April 12, 2006, a correctional counselor responded to the appeal again stating that his release date reflected all of the credits to which he was entitled. Further, the response stated, "This screening action may not be appealed - do not write anymore on this appeal itself. You don't get 1/2 time." (Id; Ex.1, ECF No. 8-1.)
Petitioner filed several petitions for writs of habeas corpus in the California state courts. In his answer, Respondent asserts that the Petition should be denied based on: (1) Petitioner's failure to exhaust state remedies, (2) procedural default (3) Petitioner's failure to file within the one year statute of limitations, and (4) Petitioner's failure to state a cognizable federal claim.
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to a judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. Petitioner's claims for relief arise from administrative appeal decisions at Corcoran State Prison, California, which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2254(a), 2241(d). If a constitutional violation has resulted in the loss of time credits, such violation affects the duration of a sentence, and the violation may be remedied by way of a petition for writ of habeas corpus. Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990). In this case, Petitioner alleges a loss of good time credits. Therefore, the Court has jurisdiction.
The instant petition is reviewed under the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). Under the AEDPA, a petitioner can ...