FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss this action pursuant to 28 U.S.C. § 2254 and Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts, on the ground that the pending petition fails to state a cognizable claim for relief. (Doc. No. 11 - "Resp't's Mot. to Dismiss." ) Petitioner has filed an opposition to the motion. (Doc. No. 12 "Pet'r's Opp'n to Resp't's Mot. to Dismiss.") Respondent has not filed a reply.
On July 28, 1995, a Tehama County jury convicted petitioner of two counts of lewd and lascivious conduct with a minor under the age of 14, in violation of California Penal Code § 288 (a), and one count of committing a lewd act with a minor aged 14 or 15 years old and 10 years younger than petitioner, in violation of California Penal Code § 288(c). The trial court also found an allegation that petitioner had suffered a 1986 felony conviction for robbery within the meaning of California Penal Code § 667(a) & (d) to be true.*fn1 As a result of his prior conviction, petitioner received a five-year enhancement and was sentenced by the Tehama County Superior Court to a total aggregate term of twenty-six years and four months in prison. (Resp't's Mot. to Dismiss, Ex. A & C (Doc. No. 11-1) at 25, 87.)*fn2
In the habeas petition now pending before this court, petitioner claims that the California courts and the California Department of Corrections and Rehabilitation ("CDCR") have violated his state created liberty interest in the award of good-time credits by improperly denying him a fifty-percent good-time credit earning rate on his five-year enhancement term. Specifically, petitioner claims that he was informed on September 25, 2007, by Mule Creek State Prison staff that he was only earning good-time credit on his five-year enhancement up to fifteen percent of that term.
Petitioner filed an inmate appeal on October 5, 2007, arguing that he is entitled to a fifty percent good-time credit earning rate because his five year sentence enhancement is based on a prior felony conviction which occurred before the enactment of California's Three Strikes Law. Petitioner's inmate appeal was denied as were his subsequent inmate appeals, including his Director's Level Appeal in which prison officials cited California Penal Code §§ 667 and 2933.1 in support of their decision. (Pet. (Doc. No. 1) at 3-4; Resp't's Mot. to Dismiss, Ex. A (Doc. No. 11-1) at 20-21, 54-55, 56.)
Having exhausted his administrative remedies and not obtained relief, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court. That petition was later transferred to the Amador County Superior Court which denied habeas relief in a short, but reasoned, decision on January 7, 2009. Petitioner subsequently filed habeas petitions in the California Court of Appeal for the Third Appellate District and the California Supreme Court, both of which were summarily denied on April 23, 2009 and November 10, 2009, respectively. (Resp't's Mot. to Dismiss, Ex. A, B & C (Doc. No. 11-1) at 2-13, 59, 78; Ex. E & F (Doc. No. 11-2) at 68.) On December 16, 2009, petitioner filed the federal habeas petition now before this court. (Doc. No. 1-"Pet.")
RESPONDENT'S MOTION TO DISMISS
Respondent has moved to dismiss, arguing that the petition fails to state a cognizable claim for relief. Respondent notes that this court is authorized to summarily dismiss a habeas petition where it plainly appears from the petition that the petitioner is not entitled to relief. (Resp't's Mot. to Dismiss at 2) (citing Rule 4, 28 U.S.C. § 2254). Respondent contends that petitioner's claim is based solely on an alleged misapplication of state law and, therefore, is not cognizable in this federal habeas corpus proceeding. (Id.) Specifically, respondent argues that petitioner is improperly seeking federal court review of the state court's interpretation of California Penal Code § 667(c)(5).*fn3 (Id.) However, in the perfunctory motion to dismiss, counsel for respondent cites no authority for the implicit premise of the motion - that California prisoners do not have a constitutionally protected due process right to the accurate calculation of their time credits.
II. Petitioner's Opposition
Petitioner argues that his petition must contain a valid constitutional claim because this court issued an order on May 6, 2010, directing respondent to file a response and stating that "petitioner may be entitled to relief if the claimed violation of constitutional rights is proved . . . ." (Pet'r's Opp'n to Resp't's Mot. to Dismiss (Doc. No. 12) at 3-4.) Similarly, petitioner asserts that his petition must state a cognizable claim because under Rule 4 of the Rules Governing § 2254 Cases the court is required to promptly determine if it plainly appears from the face of the petition that the petitioner is not entitled to relief prior to ordering respondent to respond. (Id.)
Petitioner also argues that pursuant to the decision in Hicks v. Oklahoma, 447 U.S. 343 (1980), it is a violation of due process for a state to fail to comply with its own law with respect to a state created liberty interest. In support of his argument that he is entitled to "half-time" credits with respect to his enhancement term, petitioner relies upon the decision in People v. Williams, 49 Cal. App.4th 1635, 1643 (1996). He also argues that his claim for federal habeas relief is indistinguishable from the claim presented by the petitioner in Hicks. (Pet'r's Opp'n to Resp't's Mot. to Dismiss (Doc. No. 12) at 5.)
It is, of course, true that a federal writ of habeas corpus is not available with respect to claims based solely on alleged errors in the interpretation or application of state law. See Wilson v. Corcoran, ___U.S.___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). 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 Wilson v. Corcoran, 131 S. Ct. at 16; Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton, 768 F.2d at 1085. Accordingly, if petitioner's claim is premised merely on an alleged misapplication of state law, he has failed to state a cognizable claim for federal habeas relief. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990); 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. 1295, 1300 (9th Cir. 1993) (issues ...