United States District Court, D. Arizona
REPORT AND RECOMMENDATION
G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE
Alvaro Carillo-Rodriguez (“Petitioner” or
“Carillo-Rodriguez”) filed a timely amended pro
se petition for habeas corpus (“Petition”) (Docs.
6, 8). District Judge Snow ordered Respondents to answer the
Petition (Doc. 9), noting that the issues in the Petition
have not been exhausted (Doc. 9 at p. 2-3). Respondents
answered (Doc. 13) stating that they waive the exhaustion
requirement and asserting that the Petition's state law
claims are not colorable and the Petition should be dismissed
with prejudice on that basis. The time for reply passed
without a reply being filed. For the reasons below, it is
recommended that the Petition be denied and dismissed with
The Petition Raises No Cognizable Federal Claim
the Petition is unexhausted, Respondents expressly
“waive the exhaustion requirement. See 28
U.S.C. § 2254(b)(3)” (Doc. 13 at p. 2).
Respondents do so “[a]s a matter of economy and
expediency” because “it is perfectly clear that
the claims are not colorable, and thus, the habeas petition
should be dismissed with prejudice on that basis.
See 28 U.S.C. § 2254(b)(2); Bell v.
Cone, 543 U.S. 447, 451 n.3 (2005); Murray (Roger)
v. Schriro, 746 F.3d 418, 447 (9th Cir. 2014)”
Petition is focused solely whether the Arizona Department of
Corrections time credit calculation for his two sentences,
one from a Maricopa County case and another from a Yavapai
County case, is correct in light of the sentences and court
orders in those cases (Docs. 6, 8). The Maricopa County
sentence preceded the Yavapai County sentence (Doc. 8 at p.
8-12, p. 13-16). The Yavapai County court has rejected
Petitioner's claims (Doc. 8 at p. 27-28).
Petition is identifies two grounds for relief, but does not
allege any violation of federal law (Doc. 6 at p. 6-7).
Instead, the Petition requests this Court to overrule the
Yavapai County state court decisions regarding presentence
credit under state law for the time Petitioner spent in
custody in the Maricopa County case. A federal court may only
consider a petition for writ of habeas corpus if the
petitioner alleges that “he is in custody in violation
of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a); Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (“In conducting
habeas review, a federal court is limited to deciding whether
a conviction violated the Constitution, laws, or treaties of
the United States.”); Franzen v. Brinkman, 877
F.2d 26, 26 (9th Cir. 1989) (per curiam) (“A habeas
petition must allege the petitioner's detention violates
the constitution, a federal statute, or a treaty.”)
“[F]ederal habeas corpus does not lie for errors of
state law.” Estelle, 502 U.S. at 67; Moreover,
there is no federal constitutional right to presentence
incarceration credit. Lewis v. Cardwell, 609 F.2d
926, 928 (9th Cir. 1979) (quoting Gray v. Warden of
Montana State Prison, 523 F.2d 989, 990 (9th Cir. 1975)
(stating that “[t]he origin of the modern concept of
pre-conviction jail time credit upon the term of the ultimate
sentence of imprisonment is of legislative grace and not a
constitutional guarantee.”)); see also Cacoperdo v.
Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994)
(“[t]he decision whether to impose sentences
concurrently or consecutively is a matter of state criminal
procedure and is not within the purview of federal habeas
corpus”). Thus, the Court finds that the Petition's
grounds are not cognizable in this proceeding. Accordingly,
IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus
(Doc. 6) be denied and dismissed with prejudice.
FURTHER RECOMMENDED that a Certificate of Appealability be
denied because dismissal of the Petition is justified by a
plain procedural bar and jurists of reason would not find the
recommendation is not an order that is immediately appealable
to the Ninth Circuit Court of Appeals. Any notice of appeal
pursuant to Rule 4(a)(1), Federal Rules of Appellate
Procedure, should not be filed until entry of the District
Court's judgment. The parties shall have fourteen (14)
days from the date of service of a copy of this
recommendation within which to file specific written
objections with the Court. See 28 U.S.C. §
636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil
Procedure. Thereafter, the parties have fourteen (14) days
within which to file a response to the objections. Failure to
timely file objections to the Magistrate Judge's Report
and Recommendation may result in the acceptance of the Report
and Recommendation by the district court without further
review. See United States v. Reyna-Tapia, 328 F.3d
1114, 1121 (9th Cir. 2003). Failure to timely file objections
to any factual determinations of the ...