Opinion
No. 2:13-cv-0714 GEB CKD P
2013-09-19
RONALD D. BLAMEY, Petitioner, v. RICK HILL, Respondent.
FINDINGS AND RECOMMENDATIONS
Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. In 2001, petitioner was convicted of second degree murder. He was ordered to serve 15 years-to-life imprisonment in addition to an extra one year term for using a dangerous weapon. According to petitioner, he has already served the one year term and is now serving the indeterminate sentence. Respondent has filed a motion to dismiss.
Petitioner asserts that prison officials are refusing to reduce petitioner's fifteen year minimum term by one fourth for good conduct as described in Cal. Code Regs. tit 15, § 3043(a)(1). However, that regulation provides that the one-fourth reduction applies "except where otherwise prohibited by law," and California Penal Code § 190, which is the statute identifying sentences for second degree murder at the time petitioner was sentenced, states that sentence credit provisions otherwise provided for under California law cannot apply to reduce the minimum term for second degree murder. Id. at § 190(e).
Petitioner makes several arguments as to why he should receive the reduction of his minimum term described in § 3043(a)(1), but none of his arguments are persuasive. Most importantly, petitioner fails to point to anything which reasonably suggests that he is not barred from earning any sentence credit by California Penal Code § 190(e), or that application of that law to petitioner's sentence somehow violates his federal rights.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Respondent's July 22, 2013 motion to dismiss (ECF No. 15) be granted; and
2. This case be closed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant). Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE