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Alves v. McCohn

United States District Court, C.D. California

July 27, 2017

BRENT D'VAUGHN ALVES, SR., Petitioner,
v.
JOHN MCCOHN, Respondent.

          MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          JOHN E. MCDERMOTT, UNITED STATES MAGISTRATE JUDGE

         PROCEEDINGS

         On April 28, 2016, Brent D'Vaughn Alves, Sr. ("Petitioner"), a prisoner in state custody, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2254 (“Petition”). On August 18, 2016, Respondent filed an Answer. On August 29, 2016, Petitioner filed a Reply.

         Pursuant to 28 U.S.C. § 636(c), both parties have consented to proceed before this Magistrate Judge. The matter is now ready for decision. For the reasons set forth below, the Court finds that the Petition should be denied.

         PRIOR PROCEEDINGS

         On February 11, 2014, in San Bernardino County Superior Court, Petitioner pled no contest to possession for sale of methamphetamine (Cal. Health & Safety Code § 1138) and possession for sale of marijuana (Cal. Health & Safety Code § 11359) and admitted having two prior narcotics convictions (Cal. Health & Safety Code § 11370.2(c)) and having served four prior prison terms (Cal. Penal Code § 667.5(b)). He was sentenced to six years in state prison, which was suspended, and placed on three years of felony probation. (Respondent's Lodged Document (“LD”) 1 at 103-105, 110-113; see also LD 6 at 1.)

         Petitioner appealed to the California Court of Appeal pursuant to People v. Wende, 25 Cal.3d 436 (1979), and Anders v. California, 386 U.S. 738 (1967). (LD 3.) On December 4, 2014, the judgment was affirmed in an unpublished opinion. (LD 4.)

         In April 2015, Petitioner admitted to a violation of probation. He was reinstated on probation, and the matter was referred to the probation department. (LD 6 at 1.) Ultimately, the superior court found that Petitioner had violated his felony probation and imposed the six year sentence, but ordered three years suspended on mandatory supervision with specified terms. As to the three years Petitioner was to serve in custody, the court credited him 155 actual days and 155 conduct days, for a total of 310 days. (LD 6 at 2.)

         On November 3, 2015, Petitioner filed a habeas petition in the San Bernardino County Superior Court. (LD 5.) On November 30, 2015, the superior court denied some of the claims raised in the petition on the merits and ordered an informal response on the remaining claim that Petitioner was improperly denied custody credits for the time between his initial sentencing in February 2014 until his subsequent sentencing on the April 2015 violation. (LD 6.) On February 19, 2016, the superior court denied the remaining claim on the merits, finding that Petitioner had been on felony probation during the time period at issue and, therefore, was not entitled to custody credits. (LD 9.)

         On March 1, 2016, Petitioner filed a habeas petition in the California Court of Appeal (LD 10), which was summarily denied on March 8, 2016 (LD 11).

         On March 17, 2016, Petitioner filed a petition for review in the California Supreme Court (LD 12), which was summarily denied on April 20, 2016 (LD 13). The instant Petition was filed on April 28, 2016.

         PETITIONER'S CLAIM

         Petitioner claims that the state courts improperly denied him custody credits for the period between his initial sentencing in February 2014 and his subsequent sentencing on the April 2015 violation. Specifically, Petitioner contends that the period at issue was spent on mandatory supervision, for which he was entitled to custody credits, rather than on felony probation as the state courts found and for which he was not entitled to custody credits. (Pet. at 5-6.)[1]

         STANDARD ...


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