The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
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. This action proceeds on the second amended petition filed February 3, 2011, and specifically on the claim that petitioner has been denied his right to due process under the Fourteenth Amendment by prison officials' failure to reinstate revoked sentence credit pursuant to a request made by petitioner on April 23, 2008. (Dkt. Nos. 25 ("Ptn."), 26.) Pending before the court is respondent's March 18, 2011 motion to dismiss the complaint for failing to state a cognizable claim for federal habeas relief. (Dkt. No. 27 ("Mtn.").) Petitioner filed an opposition to the motion on April 20, 2011. (Dkt. No. 29 ("Opp.").) For the reasons discussed below, the undersigned will recommend that respondent's motion to dismiss be denied.
Also pending is petitioner's April 20, 2011 motion to dismiss the second amended petition without prejudice so that he may exhaust state remedies as to another claim and re-file a federal petition containing both claims. (Dkt. No. 28.) The undersigned will recommend that this motion be granted in part and that the second amended petition be dismissed for failure to exhaust state remedies as to the sole operative claim.
On April 27, 2004, petitioner was convicted in the Monterrey County Superior Court of two counts of assault with a firearm and sentenced to a term of twelve years and four months in state prison. (Dkt. No. 11-1.*fn1
Petitioner states that he raised the credit reinstatement claim that is the subject of this action in a petition for writ of habeas corpus in the Solano County Superior Court. (Ptn. at 2-3.) A previous filing in this case indicates that petitioner filed a habeas petition with the Solano County Superior Court on February 20, 2009, which was denied on April 8, 2009. (Dkt. 11-1 at 9, 21.) The California Court of Appeal, First Appellate District, denied petitioner's subsequent state habeas petition. (Dkt. No. 11-1 at 22.) On July 24, 2009, petitioner filed a habeas petition in the California Supreme Court. That petition was summarily denied on August 12, 2009. (Dkt. No. 11-1 at 2-23, 26.)*fn2
Petitioner initiated this action on November 13, 2009 with the filing of his original petition. (Dkt. No. 1.) On June 28, 2010, respondent moved to dismiss the petition for failure to state a federal habeas claim and/or failure to exhaust the claims in the state courts. (Dkt. No. 11.) While respondent's motion was pending, petitioner filed an amended petition. (Dkt. No. 19.) On January 13, 2011, the magistrate judge previously assigned to this action dismissed the petition because petitioner had not opposed respondent's motion to dismiss. The court also dismissed the amended petition because it was not filed on the proper form; however, the court granted petitioner leave to file a second amended petition. (Dkt. No. 24.)
Petitioner filed the second amended petition on February 3, 2011. (Dkt. No. 25.) Respondent filed a second motion to dismiss on March 18, 2011. On April 20, 2011, petitioner filed a motion asking the court to "dismiss his amended petition giving petitioner leave to return to the state court to exhaust his unexhausted claim so he may amend his petition" and refile it in the district court. (Dkt. No. 28.) Respondent did not file a response to this motion.
ANALYSIS I. Due Process Claim
Petitioner's due process claim is most cogently stated in his state habeas petition to the California Supreme Court, which is part of the record in this action and judicially noticed by the court as noted above:
On 12/30/2004, petitioner received a CDCR 115 (RVR-Rules Violation Report) for Mutual Combat. Petitioner suffered a credit loss of ninety (90) days. On 11/11/2005, petitioner received [another] CDCR 115 [and] suffered a sixty (60)-day loss of credit. California Code of Regulations, Title 15, § 3327(b) provides for the restoration of credit forfeiture when the inmate applicant remains disciplinary free for a proscribed amount of time, dependent upon which division the disciplinary charge falls under. Petitioner contends he remained disciplinary-free for the proscribed time periods for both of these violations but that CDCR custody officials utilized unlawful and specious reasoning to deny the petitioner the credit restoration to which he was entitled. Petitioner attended a Unit Classification Committee on April 23, 2008 wherein petitioner formally requested that he have his credit forfeiture restored. [Prison officials maintained that petitioner was not entitled to credit restoration.] . . . . When petitioner attempted to re-apply for his restoration of credits pursuant to CCR, Title 15, § 3327(d) he was informed the section was a mistake and [he] could not reapply. Because § 3327(d) was an extant regulation at the time petitioner applied for his restoration of credits he must be entitled to all the benefits of this section and not be unlawfully denied his right to reinstate his forfeited good time/worktime credits and/or become falsely imprisoned due to prison officials illegal actions. (Dkt. No. 11-1 at 5-6; see also Ptn. at 4-5.)
II. Respondent's Motion to Dismiss: No Federal Claim
Respondent argues that petitioner's restoration of credits claim must be dismissed as not cognizable because it is based on state law. "Johnson claims that prison officials violated the California Code of Regulations by denying his April 23, 2008 request for restoration of credits lost for the 2004 and 2005 rule violations, after he allegedly remained disciplinary-free for the period of time required under the regulations. Because this claim is based entirely on state law, it is not cognizable in federal habeas corpus. 28 U.S.C. § 2254(a). Indeed, Johnson has failed to cite to any authority for the proposition that he has a federal right to restoration of credits lost as a result of a prison disciplinary. Accordingly, the petition must be dismissed." (Mtn. at 2 (record citations omitted).)
In his opposition to the motion, petitioner argues that the state regulations at issue give rise to a liberty interest that is protected by the ...