1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN MORGAN, Case No. 1:18-cv-01683-JDP (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS

THAT COURT DISMISS PETITION FOR

13 v. WRIT OF MANDATE AT SCREENING

WITHOUT PREJUDICE

14 CALIFORNIA DEPARTMENT OF CORRECTIONS AND ECF No. 1 15 REHABILITATION, 16 Respondent. 17 18 Petitioner Kevin Morgan, a state prisoner without counsel, seeks a writ of mandate under 19 California Code of Civil Procedure Sections 1085 and 1086. ECF No. 1. He argues that the 20 California Department of Corrections and Rehabilitation (“CDCR”) denied him certain “release 21 credits.” Id. at 2, 7. I construe his petition as a petition for a writ of habeas corpus, the exclusive 22 means for a state prisoner to challenge the execution of his sentence in federal court. See 23 ECF No. 3. The matter is before the court for preliminary review under Rule 4 of the Rules 24 Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must 25 examine the habeas petition and order a response to the petition unless it “plainly appears” that 26 the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 27 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 28 1 I recommend that the court dismiss the case without prejudice. Petitioner describes his 2 sole claim as follows: “[T]o receive my 33% (F) status overdue (WG) (M) release credits.” 3 ECF No. 1 at 2; accord ECF No. 1 at 7. He does not provide any other description of his claim. I 4 construe this description to mean that petitioner sought sentence credits under California law 5 based on his “Workgroup F” status and that CDCR denied his request. See Cal. Code Regs. tit. 6 15, § 3044(b)(7); Cal. Penal. Code §§ 2933, 2933.3.1 If CDCR misapplied California state law, 7 that error, by itself, does not warrant habeas relief because this federal district court can grant 8 habeas relief only if petitioner’s custody violates federal law. See 28 U.S.C. § 2254(a). Petitioner 9 does not explain how the denial of sentence credit violates federal law, so he does not state a 10 cognizable federal habeas claim.2 11 A federal district court may allow a federal habeas petitioner to file an amended petition 12 when the petitioner fails to state a cognizable claim, but I recommend that the court not do so 13 here. Absent narrow exceptions, petitioner must exhaust state-court remedies before seeking 14 habeas relief in federal court. See 28 U.S.C. § 2254(b)(1)(A); Murray v. Schriro, 882 F.3d 778, 15 807 (9th Cir. 2018). Petitioner filed his petition seven days after CDCR’s decision to deny him 16 sentence credits, ECF No. 1 at 7; given this near-immediate turnaround, it is not possible that he 17 has exhausted his claim in state court. The petition is subject to summary dismissal either 18 through screening or via an early motion to dismiss, so any amendment to the petition would be 19 futile. The recommended dismissal without prejudice allows petitioner to litigate his claim in 20 state court and return to this court, if he has a cognizable federal habeas claim. 21 Finally, I recommend that the court not issue a certificate of appealability. A petitioner 22 seeking a writ of habeas corpus has no absolute right to appeal a district court’s denial of a 23 petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v. 24 1 Petitioner is incarcerated at Sierra Conservation Center in California. In California, certain 25 inmates assigned to conservation camps, such as inmate firefighters (Work Group F), can earn 26 heightened sentence credit for their work. See Cal. Code Regs. tit. 15, § 3044(b)(7); Cal. Penal Code § 2933.3. 27 2 Indeed, petitioner may have meant to file his petition in California state court rather than in this 28 court; he used a California state court petition form. See generally ECF No. 1. 1 Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases requires a district 2 court to issue or deny a certificate of appealability when entering a final order adverse to a 3 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 4 Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial 5 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires 6 the petitioner to show that “jurists of reason could disagree with the district court’s resolution of 7 his constitutional claims or that jurists could conclude the issues presented are adequate to 8 deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; see Slack v. McDaniel, 9 529 U.S. 473, 484 (2000). The petitioner must show “something more than the absence of 10 frivolity or the existence of mere good faith.” Miller-El, 537 U.S. at 338. I find that reasonable 11 jurists would neither disagree with our conclusion nor find that petitioner should be encouraged to 12 proceed further. 13 I. Order 14 The clerk of court is directed to assign this case to a U.S. District Court Judge who will 15 review the following findings and recommendations. 16 II. Findings and Recommendations 17 I recommend that the court dismiss the petition for a writ of habeas corpus, ECF No. 1, for 18 lack of jurisdiction and decline to issue a certificate of appealability. 19 These findings and recommendations are submitted to the U.S. District Court Judge 20 presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of 21 Practice for the United States District Court, Eastern District of California. Within fourteen days 22 of the service of the findings and recommendations, any party may file written objections to the 23 findings and recommendations with the court and serve a copy on all parties. That document 24 must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 25 District Judge will then review the findings and recommendations under 28 U.S.C. 26 § 636(b)(1)(C). 27 28 1 > IT IS SO ORDERED. p : —N prssann — Dated: _ September 25, 2019 4 UNI STATES MAGISTRATE JUDGE 5 6 7 No. 202 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28