United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS THAT COURT DISMISS
PETITION FOR WRIT OF MANDATE AT SCREENING WITHOUT PREJUDICE
ECF No. 1
Kevin Morgan, a state prisoner without counsel, seeks a writ
of mandate under California Code of Civil Procedure Sections
1085 and 1086. ECF No. 1. He argues that the California
Department of Corrections and Rehabilitation
(“CDCR”) denied him certain “release
credits.” Id. at 2, 7. I construe his petition
as a petition for a writ of habeas corpus, the exclusiv means
for a state prisoner to challenge the execution of his
sentence in federal court. See ECF No. 3. The matter
is before the court for preliminary review under Rule 4 of
the Rules Governing Section 2254 Cases. Under Rule 4, the
judge assigned to the habeas proceeding must examine the
habeas petition and order a response to the petition unless
it “plainly appears” that the petitioner is not
entitled to relief. See Valdez v. Montgomery, 918
F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147
F.3d 1124, 1127 (9th Cir. 1998).
recommend that the court dismiss the case without prejudice.
Petitioner describes his sole claim as follows: “[T]o
receive my 33% (F) status overdue (WG) (M) release
credits.” ECF No. 1 at 2; accord ECF No. 1 at
7. He does not provide any other description of his claim. I
construe this description to mean that petitioner sought
sentence credits under California law based on his
“Workgroup F” status and that CDCR denied his
request. See Cal. Code Regs. tit. 15, §
3044(b)(7); Cal. Penal. Code §§ 2933,
2933.3. If CDCR misapplied California state law,
that error, by itself, does not warrant habeas relief because
this federal district court can grant habeas relief only if
petitioner’s custody violates federal law. See
28 U.S.C. § 2254(a). Petitioner does not explain how the
denial of sentence credit violates federal law, so he does
not state a cognizable federal habeas claim.
federal district court may allow a federal habeas petitioner
to file an amended petition when the petitioner fails to
state a cognizable claim, but I recommend that the court not
do so here. Absent narrow exceptions, petitioner must exhaust
state-court remedies before seeking habeas relief in federal
court. See 28 U.S.C. § 2254(b)(1)(A);
Murray v. Schriro, 882 F.3d 778, 807 (9th Cir.
2018). Petitioner filed his petition seven days after
CDCR’s decision to deny him sentence credits, ECF No. 1
at 7; given this near-immediate turnaround, it is not
possible that he has exhausted his claim in state court. The
petition is subject to summary dismissal either through
screening or via an early motion to dismiss, so any amendment
to the petition would be futile. The recommended dismissal
without prejudice allows petitioner to litigate his claim in
state court and return to this court, if he has a cognizable
federal habeas claim.
I recommend that the court not issue a certificate of
appealability. A petitioner seeking a writ of habeas corpus
has no absolute right to appeal a district court’s
denial of a petition; he may appeal only in limited
circumstances. See 28 U.S.C. § 2253;
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).
Rule 11 Governing Section 2254 Cases requires a district
court to issue or deny a certificate of appealability when
entering a final order adverse to a petitioner. See
also Ninth Circuit Rule 22-1(a); United States v.
Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). A
certificate of appealability will not issue unless a
petitioner makes “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. §
2253(c)(2). This standard requires the petitioner to show
that “jurists of reason could disagree with the
district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented
are adequate to deserve encouragement to proceed
further.” Miller-El, 537 U.S. at 327; see
Slack v. McDaniel, 529 U.S. 473, 484 (2000). The
petitioner must show “something more than the absence
of frivolity or the existence of mere good faith.”
Miller-El, 537 U.S. at 338. I find that reasonable
jurists would neither disagree with our conclusion nor find
that petitioner should be encouraged to proceed further.
clerk of court is directed to assign this case to a U.S.
District Court Judge who will review the following findings
Findings and Recommendations
recommend that the court dismiss the petition for a writ of
habeas corpus, ECF No. 1, for lack of jurisdiction and
decline to issue a certificate of appealability.
findings and recommendations are submitted to the U.S.
District Court Judge presiding over this case under 28 U.S.C.
§ 636(b)(1)(B) and Rule 304 of the Local Rules of
Practice for the United States District Court, Eastern
District of California. Within fourteen days of the service
of the findings and recommendations, any party may file
written objections to the findings and recommendations with
the court and serve a copy on all parties. That document must
be captioned “Objections to Magistrate Judge’s
Findings and Recommendations.” The District Judge will
then review the findings and recommendations under 28 U.S.C.
 Petitioner is incarcerated at Sierra
Conservation Center in California. In California, certain
inmates assigned to conservation camps, such as inmate
firefighters (Work Group F), can earn heightened sentence
credit for their work. See Cal. Code Regs. tit. 15,
§ 3044(b)(7); Cal. Penal Code § 2933.3.
 Indeed, petitioner may have meant to
file his petition in California state court rather than in
this court; he used a California state court petition ...