The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DISMISS THE FIRST AMENDED PETITION FOR FAILURE TO STATE A COGNIZABLE FEDERAL HABEAS CLAIM (Doc. 7) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed the instant petition on March 20, 2013, challenging Respondent's refusal to award Petitioner a one-year sentence reduction pursuant to Cal. Pen. Code § 2935 and 15 Cal. Code Regs. § 3043(g),*fn1 which permit a discretionary sentence reduction for exceptional acts preventing injury to inmates, staff, or the public, destruction of property or giving sworn testimony in prosecution of a correctional staff for felony offenses occurring in prison. (Doc. 1).
On March 26, 2013, after concluding that the original petition did not state a claim for federal 2 habeas relief, the Court issued an order requiring Petitioner to file an amended petition containing 3 cognizable federal habeas claims. (Doc. 4). On April 12, 2013, Petitioner filed a first amended 4 petition containing, once again, a claim for a discretionary sentence reduction premised on California 5 state law, but containing no cognizable federal habeas claim. (Doc. 7). For the reasons discussed 6 below, the Court recommends that the first amended petition be dismissed. 7
A. Procedural Grounds for Summary Dismissal.
Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:
If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.
The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
B. Failure to State A Cognizable Federal Habeas Claim.
The basic scope of habeas corpus is prescribed by statute. Subsection (c) of Section 2241 of Title 28 of the United States Code provides that habeas corpus shall not extend to a prisoner unless he is "in custody in violation of the Constitution." 28 U.S.C. § 2254(a) states that the federal courts shall entertain a petition for writ of habeas corpus only on the ground that the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States. See also, Rule 1 to the Rules Governing Section 2254 Cases in the United States District Court. The Supreme Court has held that "the essence of habeas corpus is an attack by a person in custody upon the legality of that custody . . ." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Furthermore, in order to succeed in a petition pursuant to 28 U.S.C. § 2254, Petitioner must demonstrate that the adjudication of his claim in state court 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 resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence 2 presented in the State court proceeding. 28 U.S.C. § 2254(d)(1), (2). 3
In the first amended petition, Petitioner does not allege a legitimate violation of the U.S. Constitution or federal law, nor does he argue that he is in custody in violation of the Constitution or 5 federal law. Petitioner does not allege that the adjudication of his claims in state court "resulted in a 6 decision that was contrary to, or involved an unreasonable application of, clearly established Federal 7 law, . . . or resulted in a decision that was based on an unreasonable determination of the facts . . . ." 28 8 U.S.C. § 2254. Instead, Petitioner raises only a state law claim, i.e., an abuse of discretion by the 9 California Department of Corrections and Rehabilitation ("CDCR") regarding the application of state laws and regulations. As the Court previously noted in its March 26, 2013 order, issues of state law are not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67 (1991)("We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.'"), quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Gilmore v. Taylor, 508 U.S. 333, 348-349 (1993) (O'Connor, J., concurring) ("mere error of state law, one that does not rise to the level of a constitutional violation, may not be corrected on federal habeas").
Although Petitioner has attempted to articulate a federal claim in his amended petition by citing general due process principles, he fails to connect those general due process principles to any specific facts in the amended petition to which those principles might apply. Merely placing a "due process" label on an alleged violation does not entitle Petitioner to federal relief. Langford v. Day, 110 F.3d 1386, 1388-89 (1996). Broad, conclusory allegations of unconstitutionality are insufficient to state a cognizable federal habeas claim. Jones v. Gomez, 66 F.3d 199, 205 (9th Cir.1995); Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991) (bald assertions of ineffective assistance of counsel did not entitle the petitioner to an evidentiary hearing); see also Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999), citing Gray v. Netherland, 518 U.S. 152, 162-63 (1996) ("general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion).
Here, the state statute and regulation at issue--Cal. Pen. Code § 2935 and 15 Cal. Code Reg. § 3043(g)-provide that the CDCR "may" award a twelve month sentence reduction when certain conditions have been met. State laws guaranteeing an individual of certain rights may create a liberty 2 interest protected against arbitrary deprivation by the due process clause of the fourteenth amendment. 3
Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S.Ct. 2227 (1980). However, the provisions cited above 4 appear to be entirely discretionary with the CDCR and do not appear to involve any guarantee by the 5 State of California or the CDCR that, if abrogated, would create ...