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Brown v. Swarthout

United States District Court, E.D. California

March 20, 2014

BRIAN L. BROWN, Petitioner,
v.
GARY SWARTHOUT, Respondent.

FINDINGS AND RECOMMENDATIONS

CAROLYN K. DELANEY, Magistrate Judge.

Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This case proceeds on the petition filed July 15, 2013. (ECF No. 1 ("Ptn.").) Before the court is respondent's October 17, 2013 motion to dismiss the petition for failure to state a cognizable federal habeas claim. (ECF No. 9.) Petitioner has filed an opposition to the motion (ECF No. 11), and respondent has filed a reply (ECF No 12). For the reasons set forth below, the court will recommend that respondent's motion be granted.

BACKGROUND

In November 2004, following a jury trial in the Riverside County Superior Court, petitioner was convicted of possession of cocaine for sale (Case No. RIF103566). In February 2005, he was sentenced to a state prison term of 11 years. (Ptn. at 1-2.) At that time petitioner was also consecutively sentenced pursuant to another conviction (Case No. RIF117032), for a total state prison term of 13 years and 8 months. (Id. at 13.[1]) Correctional officials calculated petitioner's post-sentence credits under applicable state law, resulting in an earliest possible release date of 2016. (Id.)

In April 2012, petitioner filed a petition for writ of habeas corpus in the Kings County Superior Court, claiming that correctional officials miscalculated his post-sentence credits with respect to his possession conviction (Case No. RIF103566) in February 2005. The superior court denied the petition, citing In re Reeves , 35 Cal.4th 765, 772-773 (2005). (Ptn. at 21-24.)

Petitioner subsequently filed petitions for writs of habeas corpus in the state court of appeal and supreme court; both were denied. (Id. at 29-31.) In its decision, the state court of appeal briefly stated its reason for denying the petition as follows:

Petitioner fails to demonstrate the prison miscalculated his earliest possible release date under Penal Code section 2933.1, which became effective on September 21, 1994, prior to petitioner's offenses.

(Id. at 29.) California Penal Code § 2933.1 provides that persons convicted of certain felonies "shall accrue no more than 15 percent of worktime credit." In Reeves, the California Supreme Court interpreted § 2933.1 as it applied to concurrent sentences. Reeves was decided in May 2005, after petitioner was sentenced.

In this federal habeas action, petitioner asserts that he was denied post-sentence credits in violation of the ex post facto clause, as the superior court relied on Reeves to uphold CDCR's erroneous credit calculation. (See also ECF No. 11 at 2 (petitioner's ex post facto claim is based on the superior court's decision, citing Reeves).) Petitioner asserts that CDCR's error in calculating his credits "occurred on February 22, 2005[, ] and the state courts should have applied the law [in effect] at that time." (Ptn. at 18.)

ANALYSIS

In his motion to dismiss, respondent argues that petitioner fails to state a cognizable federal habeas claim in alleging that "the application of a post-conviction state court case clarifying the scope of [§ 2933.1] constitutes an ex post facto violation." (ECF No. 9 at 3.)

Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 provides for summary dismissal of a habeas petition "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Thus the court considers whether summary dismissal is appropriate under applicable law as set forth below.

I. AEDPA

The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death ...


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