The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on the original petition filed March 2, 2012. Petitioner alleges that his minimum eligible parole date ("MEPD") has been miscalculated based on incorrect interpretations of his sentence.
In particular, petitioner alleges that he was convicted of attempted murder and second degree robbery with use of a firearm in 2001. (Dkt. No. 1 at 1.) Petitioner alleges that he was sentenced to 25 years to life. (Id.) Petitioner alleges that he has since been informed by prison officials that his sentence is 55 years to life, 32 years to life, and life without the possibility of parole. (Id. at 16-17.) Petitioner alleges that his MEPD has not been calculated based on his actual sentence.
Pending before the court is respondent's May 18, 2012 motion to dismiss. Respondent argues that this action should be dismissed on four grounds: 1) failure to state a cognizable federal claim; 2) petitioner's claim is unexhausted; 3) petitioner's claim is barred by the statute of limitations; and 4) petitioner's claim is procedurally barred.
For the following reasons, the undersigned recommends that respondent's motion be granted.
A. Clarification of Petitioner's Claim
Petitioner claims that his MEPD has been incorrectly calculated based on incorrect interpretations of his sentence. Petitioner does not claim that he has reached his MEPD, based on what he alleges is his correct sentence.
The Due Process Clause protects prisoners from being deprived of liberty without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action for deprivation of due process, a prisoner must first establish the existence of a liberty interest for which the protection is sought. Liberty interests may arise from the Due Process Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466--68 (1983). Liberty interests created by state law are generally limited to freedom from restraint which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995).
Once a liberty interest is established, a Fourteenth Amendment violation may arise from a deprivation of that interest under color of law through action that is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare. Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996), overruled in part on other grounds by Nitco Holding Corp., v. Boujikian, 491 F.3d 1086 (9th Cir. 2007), or through a failure to provide that process which is due the identified liberty interest. Wolff, 418 U.S. 539 at 556; see also Sandin, 515 U.S. 472 at 478.
A prisoner may claim a Fourteenth Amendment "liberty interest" in avoiding incarceration beyond his or her release date. "The Supreme Court has recognized that an individual has a liberty interest in being free from incarceration absent a criminal conviction." Lee v. City of Los Angeles, 250 F.3d 668, 683 (9th Cir. 2001), citing Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992). "[B]ecause a prisoner's interest in avoiding wrongful detention is a strong one, due process entitles a prisoner with a meaningful and expeditious consideration of claims that the term of prisoner's sentence has been miscalculated." Royal v. Durison, 319 F. Supp. 2d 534, 539 (E.D.Pa. 2004). "If the [prison] officials made their calculations in a manner which denied [prisoner] his statutory right to liberty without due process of law, a constitutional violation exists and a cause of action is available under § 1983." Haygood v. Younger, 769 F.2d 1350, 1355 (9th Cir. 1985).
When an inmate informs proper authorities of a claim that his or her release date was incorrectly calculated, due process requires that the state provide "a meaningful hearing at a meaningful time." Haygood, 769 F.2d 1350 at 1356. An inmate claiming an error in the computation of a term of confinement, based upon documentation in the record, not resolved at the first level of prison appeal may request a Haygood hearing as the second level appeal. See Cal.Code Regs. tit.15, § 3084.7(h); CDCR--Department Operations Manual (DOM), § 54100.29 et seq. The only issue to be determined in the Haygood hearing is whether or not an error has been committed which adversely affects a term of confinement or period of parole. CDC--DOM, § 54100.29. If an error has been made the California Department of Corrections and Rehabilitation ("CDCR") shall correct it or refer the matter referred to any appropriate agency or court for disposition. See Cal.Code Regs. tit. 15, § 3084.7(h); CDC--DOM, § 54100.29.4.
An inmate may submit the appeal to the third level if dissatisfied with the second level response. See Cal. Code Regs. tit. 15, §§ 3084.2(d), 3084.7(h).
Jenkins v. Bernatene, 2012 WL 3764035 at *4 (E.D.Cal. 2012).
Based on the case law cited above, the undersigned construes petitioner to be alleging that prison officials refused his requests to correct the alleged error in the computation of his sentence and MEPD in violation of his right to due process.
To put respondent's motion in context, the following background information is necessary.
On February 22, 2011, petitioner filed an administrative grievance challenging the computation of his sentence. (Dkt. No. 12-3 at 63-68.) In this grievance, petitioner alleged that in July 2004, the Board of Parole Hearings ("BPH") directed the California Department of Corrections and Rehabilitation ("CDCR") to obtain a copy of petitioner's sentencing transcript so that it could correctly calculate his MEPD. (Id. at 63.) Petitioner went on to allege that he had been informed that he had three different sentences: life without parole, 55 years to life and 32 years to life. (Id. at 63, 65.) Petitioner alleged that as of January 8, 2010, CDCR had still not obtained his sentencing transcript. (Id. at 65.) Petitioner went on to allege that CDCR's calculation of his sentence was still incorrect. (Id.) As relief, petitioner requested that CDCR obtain his sentencing transcript and correctly calculate his MEPD. (Id. at 63, 65.)
Petitioner's grievance was cancelled at the First Level on March 8, 2011, because it was not timely. (Id. at 63, 68.) On May 4, 2011, petitioner's grievance was rejected at the Director's Level of review because petitioner processed the appeal at an inappropriate level, bypassing lower levels of review. (Id. at 70.) In other words, petitioner failed to file a second level appeal.
On July 13, 2011, petitioner filed a habeas corpus petition in the Sacramento County Superior Court raising the claim raised in the instant petition. (Dkt. No. 12-2.) On August 31, 2011, the Sacramento County Superior Court denied petitioner's habeas petition, in part, based on his failure to exhaust administrative remedies:
It is well established that an inmate must first exhaust all available administrative remedies prior to seeking relief with the court by way of a petition for writ of habeas corpus. (In re Muszalski (1975) 52 Cal.App.3d 500.) Petitioner has failed to do so and has not stated any facts which cause ...