REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Percy Anderson, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

On May 16, 2016, Petitioner filed a "Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 By a Person in State Custody" in the United States District Court for the Southern District of California. On May 18, 2016, the United States District Court of the Southern District of California transferred the Petition to this Court. Respondent filed an Answer on June 15, 2016. Petitioner filed a Reply on July 19, 2016.

BACKGROUND

In 2008, Petitioner pled nolo contendere to second degree robbery with use of a firearm (Petition, ECF Dkt. No. 1, p. 2; Respondent's Lodgment 1; Respondent's Lodgment 2, p. AG-0004). Petitioner received a fourteen-year prison sentence (Petition, ECF Dkt. No. 1, p. 1; Respondent's Lodgment 1; Respondent's Lodgment 2, p. AG-0004). The California Department of Corrections and Rehabilitation ("CDCR") determined that Petitioner was entitled to earn 15% credits as provided in California Penal Code section 2933.1 (see Petition, ECF Dkt. No. 1, p. 47).

On November 6, 2014, Petitioner submitted a letter to the CDCR Secretary purporting to waive his alleged rights to receive credits "imposed by the courts" under California Penal Code section 2934 (Petition, ECF Dkt. NO. 1, p. 6 & Exhibits, p. 36).1 Petitioner apparently argues that the purported waiver should permit Petitioner to earn work-time credits pursuant to California Penal Code section 2933, a more general work-time credit statute, through participation in the "Inmate Work/Training Incentive Program and positive programming periods" (Petition, ECF Dkt. No. 1, p. 6; Respondent's Lodgment 2, AG-005; Respondent's Lodgment 5, AG-0020). Petitioner allegedly did not receive a response to his November 2014 letter and did not receive any relief through the CDCR inmate appeals process (id.). Documents attached to the Petition show that prison officials rejected Petitioner's assertion that the alleged waiver should permit Petitioner to earn work-time credits pursuant to section 2933 (see Petition, ECF Dkt. No. 1 Exhibits, pp. 37-46).

Petitioner filed a habeas corpus petition in the Riverside County Superior Court, which that court denied in a brief order (Respondent's Lodgments 2, 3). Petitioner filed a habeas corpus petition in the California Court of Appeal, which that court denied summarily (Respondent's Lodgments 4, 6). Petitioner filed a petition for review in the California Supreme Court, which that court denied summarily (Respondent's Lodgments 5, 7).

PETITIONER'S CONTENTIONS

Petitioner contends:

1. CDCR's requirement that Petitioner participate in the Inmate Work/Training Incentive Program and its refusal to permit Petitioner to earn section 2933 credits for such participation allegedly violate Due Process (Ground One);

2. CDCR allegedly is violating Petitioner's Ninth Amendment rights by denying him the ability to earn credits for participation in the Inmate Work/Training Incentive Program (Ground Two); and

3. CDCR's refusal to permit Petitioner to earn credits for his participation in the Inmate Work/Training Incentive Program allegedly violates Equal Protection (Ground Three).

STANDARD OF REVIEW

Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application prong" of section 2254(d) (1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).

"In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been `objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported,. . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. 86, 101 (2011). This is "the only question that matters under § 2254(d)(1)." Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103. In applying these standards to Petitioner's exhausted claims, the Court looks to the last reasoned state court decision, here the decision of the Court of Appeal. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008).

Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

DISCUSSION

I. Petitioner's Due Process Claim Does Not Merit Federal Habeas Relief.

Matters relating to sentencing and serving of a sentence generally are governed by state law and do not raise a federal constitutional question. See Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989), cert. denied, 499 U.S. 963 (1991); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986); Sturm v. California Adult Authority, 395 F.2d 446, 448 (9th Cir. 1967), cert. denied, 395 U.S. 947 (1969). Under narrow circumstances, however, the misapplication of state sentencing law may violate due process. See Richmond v. Lewis, 506 U.S. 40, 50 (1992). "[T]he federal, constitutional question is whether [the error] is so arbitrary or capricious as to constitute an independent due process" violation. Id. (internal quotation and citation omitted); see also Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) ("Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief.").

No fundamental unfairness occurred here. Under California Penal Code section 2933, a nonviolent offender generally may earn work-time credit to reduce his or her sentence by fifty percent. See Cal. Penal Code §§ 2933, 2933.1. However, Petitioner's crime of robbery qualified as a violent felony under California law. See Cal. Penal Code § 667.5(c)(9). For this reason, Petitioner is not entitled to accrue more than 15% credit. See Cal. Penal Code § 2933.1(a) ("Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933");2 Bankuthy v. Yates, 376 Fed. App'x 694, 695 (9th Cir. 2010) (rejecting due process challenge to state's failure to award violent offender day-for-day credits; "Cal. Penal Code §2933.1 clearly limits the sentence credits Bankruthy may earn . . . to fifteen percent."); Aung v. Beard, 2014 WL 7185336, at *2 (C.D. Cal. Dec. 15, 2014) ("As a matter of state law, the 15% rate in § 2933.1 expressly overrides the credit accrual rule in § 2933 or any other statute.") (citation omitted).

Petitioner's purported section 2934 waiver is unavailing. Prior to 1982, prisoners earned credits at the rate of one day of credit for every two days of good behavior or participation in work programs or other activities, pursuant to California Penal Code section 2931. See Miller v. Rowland, 999 F.2d 389, 390 (9th Cir. 1993), cert. denied, 511 U.S. 1008 (1994). In 1982, the California legislature adopted a new system for awarding credits to prisoners sentenced after January 1, 1983, under which prisoners could earn one day of credit for each day of participation in work assignments or educational programs. See Cal. Penal Code § 2933; Miller v. Rowland, 999 F.2d at 390. For prisoners sentenced before 1983, the legislature provided that "a prisoner subject to the provisions of Section 2931 may waive the right to receive time credits as provided in Section 2931 and be subject to the provisions of Section 2933." Cal. Penal Code § 2934. Such waiver option is unavailable to Petitioner, however. Petitioner was sentenced long after 1983. California Penal Code section 2933.1 (not section 2931 or section 2933) governs Petitioner's credit earning status. See Miller v. Rowland, 999 F.2d at 392 (waiver ineffective where petitioner was not entitled to earn section 2933 credits); Kamaleddin v. Hedgpeth, 2011 WL 5922947, at *2 (N.D. Cal. Nov. 28, 2011) ("Petitioner was convicted after January 1, 1983, and therefore not subject to the one-third rate of section 2931; he cannot obtain a waiver from 2931 since it did not apply to him.").

To the extent Petitioner contends that prison officials are violating Petitioner's constitutional rights by compelling Petitioner to work, any such contention cannot merit federal habeas relief. "There is no federally protected right of a state prisoner not to work while imprisoned after conviction. . . ." Draper v. Rhay, 315 F.2d 193, 197 (9th Cir.), cert. denied, 375 U.S. 915 (1963).

For the foregoing reasons, the state courts' rejection of Petitioner's due process claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal Law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on Ground One of the Petition.

II. Petitioner's Ninth Amendment Claim Does Not Merit Federal Habeas Relief.

The Ninth Amendment does not "independently [secure] any constitutional right, for purposes of pursuing a civil rights claim." Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986) (citations omitted); see also Ramirez v. Butte-Silver Bow County, 298 F.3d 1022, 1029 (9th Cir. 2002), aff'd on other grounds sub nom. Groh v. Ramirez, 540 U.S. 551 (2004) (Ninth Amendment claim properly dismissed because plaintiff may not "`double up' constitutional claims"); Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991), cert. denied, 503 U.S. 951 (1992) ("Schowengerdt's Ninth Amendment argument is meritless, because that amendment has not been interpreted as independently securing any constitutional rights for purposes of making out a constitutional violation"). Accordingly, Ground Two of the Petition fails to allege any basis for federal habeas relief. See 28 U.S.C. § 2254(a); Frantz v. Hazey, 533 F.3d at 736-37.

III. Petitioner's Equal Protection Claim Does Not Merit Federal Habeas Relief.

"The Equal Protection Clause directs that all persons similarly circumstanced shall be treated alike." Plyler v. Doe, 457 U.S. 202, 216 (1982) (citation and internal quotations omitted); see also City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). To prove an equal protection violation, Petitioner must demonstrate "that the [challenged] statute, either on its face or in the manner of its enforcement, results in members of a certain group being treated differently from other persons based on membership in that group." McLean v. Crabtree, 173 F.3d 1176, 1185 (9th Cir. 1999), cert. denied, 528 U.S. 1086 (2000) (citation and quotations omitted). "Second, if it is demonstrated that a cognizable class is treated differently, the court must analyze under the appropriate level of scrutiny whether the distinction made between the two groups is justified." Id. (citation and quotations omitted). Unless a legislative classification warrants some form of heightened review because it targets a suspect class or burdens the exercise of a fundamental right, the Equal Protection Clause requires only that the classification be rationally related to a legitimate state interest. See Vacco v. Quill, 521 U.S. 793, 799 (1997).

Under rational relationship review, a law is constitutional "so long as it bears a rational relation to some legitimate end." Romer v. Evans, 517 U.S. 620, 631 (1996). The Equal Protection Clause does not authorize a court to judge the "wisdom, fairness, or logic of legislative choices," or to "sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines." Heller v. Doe, 509 U.S. 312, 319 (1993) (citations and internal quotations omitted). "For these reasons, a classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity." Id.

Petitioner's articulation of his equal protection claim is extremely cursory and conclusory. Petitioner states only:

(Petition, ECF Dkt. No. 1, p. 8). Petitioner thus fails to allege any facts demonstrating that he was treated differently from others similarly situated or that no rational basis existed for any allegedly differential treatment. Petitioner's cursory and conclusory allegations do not merit federal habeas relief. See Ashby v. Payne, 317 Fed. App'x 641, 643 (9th Cir. 2008) (habeas petitioner's conclusory equal protection claim concerning credit denial insufficient); Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) ("cursory and vague claim cannot support habeas relief") (citation omitted); Jones v. Gomez, 66 F.3d 199, 204-205 (9th Cir. 1995), cert. denied, 517 U.S. 1143 (1996) (conclusory allegations do not warrant habeas relief).

To the extent Petitioner challenges California Penal Code section 2933.1 on the ground that the statute allegedly discriminates against prisoners who have committed violent felonies, and who therefore cannot earn credits at more than the 15% rate, any such challenge fails. The rational basis test would apply to such a challenge because: (1) prisoners do not comprise a suspect class (see Webber v. Crabtree, 158 F.3d 460, 461 (9th Cir. 1998)); and (2) no fundamental right is at stake because California Penal Code section 2933 does not create a constitutionally protected liberty interest (see Kalka v. Vasquez, 867 F.2d 546, 547 (9th Cir. 1989)). The California Legislature plainly had a rational basis for treating violent offenders differently than nonviolent offenders with respect to work-time credits. See Contero v. Tilton, 248 Fed. App'x 778, 779-80 (9th Cir. 2007) (section 2933.1 served rational state interest in "treating violent offenders more harshly"); Howard v. Yates, 2008 WL 4104250, at *5 (E.D. Cal. Sept. 2, 2008) ("The legislative intent underpinning § 2933.1 warrants the C.D.C.R.'s discriminatory practice of allocating credits to inmates depending upon their respective offenses. The state has a rational basis for discriminating against different inmates under § 2933.1.") (citation omitted); People v. Rosales, 222 Cal.App.4th 1254, 1262, 166 Cal.Rptr.3d 620 (2014) ("Violent felonies are more serious and logically warrant greater periods of incarceration.").

In attachments to the Petition (though not in the Petition itself), Petitioner also appears to contend that he should benefit from an order of the District Court in Coleman v. Brown (United States District Court for the Eastern and Northern Districts of California case numbers 2:90-00520-KJM KLN PC and C01-1351-THE). In that order, a three-judge court discussed the State's plan to expand the use of good-time credits for state prisoners (see Petition, ECF Dkt. No. 1, pp. 116-121). The Coleman Court indicated that the State had the option of amending its good-time credit program without releasing violent offenders as long as the overall number of those released would not be affected, and the Court left it to the State to determine what modifications to make to the proposed credit expansion (id. at p. 121). Petitioner has not shown that any order in Coleman entitles Petitioner to receive more work-time credits than those currently authorized by California Penal Code section 2933.1.

For all of the foregoing reasons, the state courts' rejection of Petitioner's equal protection claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal Law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on Ground Three of the Petition.

RECOMMENDATION

For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.