Opinion
ORDER
CAROLYN K. DELANEY, Magistrate Judge.
On August 16, 2013, petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging credit awarded against his sentence of imprisonment at sentencing. Because petitioner is already challenging his conviction and sentence in this action, the petition filed August 16 was construed, pursuant to Woods v. Carey, 525 F.3d 886, 889 (9th Cir. 2008), as a motion for leave to amend the petition filed in this case.
At sentencing in El Dorado County, petitioner was awarded 499 days credit for actual time spent in custody prior to sentencing and 249 extra days pursuant to California Penal Code § 4019. Petitioner asserts that El Dorado County should have credited his sentence with the time he spent in the El Dorado County Jail from sentencing until transfer to the California Department of Corrections and Rehabilitation (CDCR). This claim is without merit, however, as petitioner fails to show that CDCR has failed to credit petitioner with any time he spent in custody after sentencing.
Petitioner also claims that at sentencing he should have been given day-for-day sentence credit instead of the one day of credit for every two days served he received. However, the version of California Penal Code § 4019 in effect at the time petitioner was sentenced indicates that petitioner was not entitled to day-for-day credit because he had been convicted of at least one "serious felony" (conspiracy to commit robbery) identified in California Penal Code § 1192.7.
Because allowing petitioner leave to amend the petition pending in this action with the claims presented in the petition filed by petitioner on August.16, 2013, would be futile, the motion to amend will be denied. See Bonin v. Calderon, 59 F.3d. 815, 845 (9th Cir. 1995).
Accordingly, IT IS HEREBY ORDERED that petitioner's motion for leave to file an amended petition for writ of habeas corpus (ECF No. 78) is denied.