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Philippe Tirre v. Martin D. Biter

July 10, 2012

PHILIPPE TIRRE, PETITIONER,
v.
MARTIN D. BITER, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Petitioner challenges his 2010 conviction on charges of possession of heroin in a state correctional facility. Petitioner raises two claims in his petition: the court failed to provide petitioner pre-sentence or post-sentence custody credits to his prison sentence, in violation of the Fourteenth Amendment; and the felony conviction should be reduced to a misdemeanor as there was insufficient evidence to sustain the felony charge. After careful review of the record, this court concludes that the petition is denied.

II. Procedural History

On January 14, 2010, petitioner pled guilty in Lassen County Superior Court to the charge of possession of heroin in a state correctional facility. (Respondent's Lodged Document ("LD") 1.) At the time petitioner pled guilty, he was serving a sentence of assault with a deadly weapon with great bodily injury entered by the Los Angeles County Superior Court. (LD 3.)

On October 2, 2010, petitioner filed a petition for writ of habeas corpus in the Lassen County Superior Court alleging that the state sentencing court failed to provide petitioner "pre-sentence or post-sentence custody credits" in violation of the Fourteenth Amendment, and seeking reduction of the felony offense to a misdemeanor offense because "the evidence was legally insufficient to sustain the charge under the law." (LD 2.) Petitioner claimed he was not the "actual owner" of the heroin found in his possession. (Id.)

On December 2, 2010, the Lassen County Superior Court denied the petition, finding petitioner previously received credit against a prior prison term. (LD 3.)

On December 27, 2010, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District, Case No. C066966. (LD 4.) Petitioner raised the same two claims. On January 13, 2011, the Court of Appeal denied the petition without comment. (LD 5.)

On February 14, 2011, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (LD 6.) On July 20, 2011, the California Supreme Court denied the petition without comment. (LD 7.)

On August 5, 2011, petitioner filed the instant petition. Respondent filed an answer, and petitioner did not file a reply.

III. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). 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. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...


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