Case 5:22-cv-01157-AB-AS Document 4 Filed 09/23/22 Page 1 of 5 Page ID #:20

1 2 3 4 JS-6 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION 10 11 JUSTIN JESUS RIVERA, CASE NO. EDCV 22-1157-AB (AS) 12 Petitioner, ORDER OF DISMISSAL 13 v. 14 CDCR SECRETARY, 15 Respondent. 16 17 I. BACKGROUND 18 19 On July 5, 2022, Justin Jesus Rivera (“Petitioner”), a 20 California state prisoner proceeding pro se, filed a Petition for 21 Writ of Habeas Corpus (“Petition”).1 (Dkt. No. 1). Petitioner 22 challenges the trial court’s calculation of presentence custody 23 credits related to his 2017 guilty pleas to charges of robbery and 24 possession for sale of a controlled substance. (Petition at 2-3). 25 26 1 Although filed on a form petition created by the state 27 courts, the Court assumes that the Petition was filed pursuant to 28 U.S.C. § 2254. 28 Case 5:22-cv-01157-AB-AS Document 4 Filed 09/23/22 Page 2 of 5 Page ID #:21

1 Specifically, it appears Petitioner argues, as he did in the state 2 courts, that the trial court improperly denied Petitioner pre- 3 sentencing custody credits pursuant to California Penal Code 4 section 2900.5.2 (Petition at 3; see also Petition at 4-5 [stating 5 claims raised in state court]). 6 7 2 California Penal Code section 2900.5, effective January 1, 8 2017, provides in pertinent part: 9 (a) In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in 10 custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, 11 rehabilitation facility, hospital, prison, juvenile 12 detention facility, or similar residential institution, all days of custody of the defendant, including days 13 served as a condition of probation in compliance with a court order, credited to the period of confinement 14 pursuant to Section 4019, and days served in home detention pursuant to Section 1203.016 or 1203.018, shall 15 be credited upon his or her term of imprisonment . . . . 16 (b) For the purposes of this section, credit shall be 17 given only where the custody to be credited is attributable to proceedings related to the same conduct 18 for which the defendant has been convicted. Credit shall be given only once for a single period of custody 19 attributable to multiple offenses for which a consecutive sentence is imposed. 20 21 (c) For the purposes of this section, “term of imprisonment” includes any period of imprisonment 22 imposed as a condition of probation or otherwise ordered by a court in imposing or suspending the imposition of 23 any sentence, and also includes any term of imprisonment, including any period of imprisonment prior to release on 24 parole and any period of imprisonment and parole, prior 25 to discharge, whether established or fixed by statute, by any court, or by any duly authorized administrative 26 agency. 27 (d) It is the duty of the court imposing the sentence to determine the date or dates of any admission to, and 28 release from, custody prior to sentencing and the total 2 Case 5:22-cv-01157-AB-AS Document 4 Filed 09/23/22 Page 3 of 5 Page ID #:22

1 A Petition for Writ of Habeas Corpus can only be filed by a 2 petitioner who is in state custody and contends that such custody 3 is in violation of the Constitution, laws or treaties of the United 4 States. 28 U.S.C. § 2254(c). 5 6 Petitioner’s sentencing error claim only involves the 7 8 application and/or interpretation of state law and consequently is 9 not cognizable on federal habeas review. See 28 U.S.C. § 2254(a); 10 Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)(reiterating that it 11 is not the province of a federal habeas court to reexamine state 12 court determinations on state law questions); Smith v. Phillips, 13 455 U.S. 209, 221 (1982)(“A federally issued writ of habeas corpus, 14 of course, reaches only convictions obtained in violation of some 15 provision of the United States Constitution.”); Christian v. Rhode, 16 17 41 F.3d 461, 469 (9th Cir. 1994); Kennick v. Superior Court, 736 18 F.2d 1277, 1280 (9th Cir. 1984); see also O'Neal v. Sherman, 2016 19 WL 1715185, at *16 (C.D. Cal. Apr. 28, 2016) (claim that state 20 court miscalculated presentence custody credits not cognizable on 21 federal habeas corpus); Guerrero v. Holland, 2015 WL 6560524, at 22 *3 (C.D. Cal. Aug. 31, 2015) (finding claim regarding the denial 23 of presentence custody credits pursuant to California Penal Code 24 25 26 number of days to be credited pursuant to this section. The total number of days to be credited shall be 27 contained in the abstract of judgment provided for in Section 1213. . . . 28 3 Case 5:22-cv-01157-AB-AS Document 4 Filed 09/23/22 Page 4 of 5 Page ID #:23

1 section 2900.5 not cognizable on federal habeas review); Mason v. 2 Holt, 2016 WL 6136076, at *5 (E.D. Cal. Oct. 21, 2016) (“Federal 3 district courts that have considered the issue have concluded that 4 the denial of presentence conduct credits under Cal. Penal Code §§ 5 4019 and 2900.5 implicates only state law questions, and therefore 6 such claims are not cognizable on federal habeas review.”). 7 8 9 Petitioner has not transformed his state law sentencing claim 10 into a cognizable federal constitutional claim with his conclusory 11 citations to due process under the Fifth and Fourteenth Amendments. 12 (See Petition at 3). “[Petitioner] may not [] transform a state- 13 law issue into a federal one merely by asserting a violation of 14 due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 15 1996). This holds true for claims making conclusory assertions of 16 17 a due process violation for denying presentence custody credits 18 pursuant to California Penal Code section 2900.5. See Guerrero v. 19 Holland, 2015 WL 6560524, at *3 (“Notwithstanding petitioner’s 20 cursory citations to the Equal Protection and Due Process Clauses, 21 his allegations do not involve a deprivation of any federally 22 protected right.”). 23 24 25 Because Petitioner does not state a claim for relief under 28 26 U.S.C. § 2254, dismissal of the Petition is warranted.3 27 3 The Court notes that it appears from the face of the Petition 28 that it also is untimely under the one-year statute of limitations 4 Case 5:22-cv-01157-AB-AS Document 4 Filed 09/23/22 Page5of5 Page ID #:24

1 Il. ORDER 3 ACCORDINGLY, IT IS ORDERED that the Petition is dismissed without prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

| DATED: September 23, 2022 9

ANDRE BIROTTE JR.

10 UNITED STATES DISTRICT JUDGE 11 12 Presented by: 13 /s/ 14 ALKA SAGAR 15 UNITED STATES MAGISTRATE JUDGE

16 17 18 19 20 21 22 23 24 provided for under 28 U.S.C. § 2244(d) (1). However, because 25 Petitioner is entitled to notice before his Petition is dismissed on the basis of untimeliness, see Day v. McDonough, 547 U.S. 198, 26 || 202 (2006) (“[B]lefore acting on its own initiative [on the issue of untimeliness], a court must accord the parties fair notice and 27 || an opportunity to present their positions.”), the Court does not 28 dismiss on this basis.