FINDINGS & RECOMMENDATIONS
Petitioner, a state prisoner, proceeds pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. At issue is the sentence imposed for a judgment of conviction entered against him on November 3, 2009 in the Yolo County Superior Court on charges of battery with serious bodily injury and petty theft with a prior theft-related conviction. Petitioner seeks federal habeas relief on the ground that he was unconstitutionally denied 58 days of presentence conduct credits. After careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
FACTUAL AND PROCEDURAL BACKGROUND
On July 23, 2009, the Yolo County District Attorney filed an Information charging petitioner with second degree robbery (count 1), battery with serious bodily injury count 2), and assault by means of force likely to produce great bodily injury (count 3).*fn1 CT at 2. As to counts 1 and 3 it was alleged that petitioner inflicted great bodily injury in the commission of those offenses. Id. On November 16, 2009, the district attorney filed an Amended Information adding count 4, petty theft with a prior conviction. Id. at 94. Pursuant to a plea agreement, on that same day petitioner entered no contest pleas to counts 2 and 4 in exchange for dismissal of the remaining counts and enhancement allegations. Id. at 94-95; 96-98. The trial court immediately sentenced petitioner, imposing an aggregate sentence of 4 years and 8 months in state prison, comprised of a four year term on count 2 and a consecutive eight month term on count 4. Id. at 94-95; 100-01. The court awarded 177 days credit for time served, comprised of 119 actual days plus 58 days of conduct credits pursuant to California Penal Code § 4019. Id.
Subsequently, § 4019 was amended by the California Legislature, effective January 25, 2010. Thereafter, on or about July 27, 2010, petitioner filed an application in the Yolo County Superior Court claiming that he was entitled to an additional 58 days of conduct credits under § 4019 as amended. Id. at 104-107. On August 6, 2010, the trial court denied petitioner's application for the award of additional conduct credits on the basis that the change in state law upon which the application was based was not retroactive. Id. at 108-109. Petitioner appealed from that denial to the California Court of Appeal for the Third Appellate District.
In an unpublished order issued on March 28, 2011, affirming the trial
court's denial of additional days of conduct credit,*fn2
the state appellate court held that petitioner was not
entitled to an additional 58 days of presentence conduct credits. In
so holding, that court concluded that the dispositive issue was not
the retroactivity of the amended § 4019, but rather the fact that
petitioner was not among the prisoners eligible for those additional
credits under state law. Opinion at 2. California Supreme Court denied a petition
for review filed on behalf of petitioner.*fn3
Petitioner filed his federal petition on August 1, 2011. The parties agree that petitioner exhausted the equal protection claim presented here by fairly presenting it to the highest state court.
I. Standards of Review Applicable to Habeas Corpus Claims 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 Wilson v. Corcoran, 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).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle ...