United States District Court, D. Nevada
R. HICKS, UNITED STATES DISTRICT JUDGE.
pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 filed by Nevada state prisoner Brian
Sherven is before the court on respondents' motion to
dismiss the petition (ECF No. 10). Sherven did not file a
response to the motion.
Procedural History and Background
pleaded guilty to two counts of attempted lewdness with a
child under the age of fourteen years (exhibit 6, pp.
9-10). The state district court sentenced Sherven
to an aggregate sentence of 14 to 35 years. Id.
Judgment of conviction was filed on November 9, 2012.
filed a pro per state postconviction petition for
writ of habeas corpus in August 2016. Exh. 2. He argued that
the Nevada Department of Corrections (NDOC) failed to deduct
statutory credits from his minimum term of imprisonment in
violation of his Fifth, Sixth, and Fourteenth Amendment
rights. Id. The state district denied the petition,
and the Nevada Court of Appeals affirmed the denial. Exhs.
dispatched his federal habeas petition for filing on or about
December 27, 2017 (See ECF No. 7, p. 12).
Respondents argue that neither ground is cognizable in
federal habeas corpus and that ground 2 is unexhausted (ECF
Legal Standards & Analysis
Claims Cognizable in Federal Habeas Corpus
prisoner is entitled to federal habeas relief only if he is
being held in custody in violation of the constitution, laws
or treaties of the United States. 28 U.S.C. § 2254(a).
Unless an issue of federal constitutional or statutory law is
implicated by the facts presented, the claim is not
cognizable under federal habeas corpus. Estelle v.
McGuire, 502 U.S. 62, 68 (1991). A petitioner may not
transform a state-law issue into a federal one merely by
asserting a violation of due process. Langford v.
Day, 110 F.3d 1380, 1381 (9th Cir. 1996). Alleged errors
in the interpretation or application of state law do not
warrant habeas relief. Hubbart v. Knapp, 379 F.3d
773, 779-80 (9th Cir. 2004).
1 and 2
in ground 1 Sherven argues that the NDOC has failed to deduct
statutory credits (good time) from his minimum term of
imprisonment in violation of his Fifth, Sixth, and Fourteenth
Amendment rights (ECF No. 7, pp. 3-7). In ground 2 he asserts
that the NDOC is violating his Fourteenth Amendment equal
protection rights by calculating his credits differently than
the credits of similarly situated individuals. Id.
at 9-10. Respondents argue that these are solely issues of
the application of state law (ECF No. 6, p. 2).
a state court properly applies its own law is not a federal
constitutional concern reviewable under 28 U.S.C. §
2254(a). Clemons v. Mississippi, 494 U.S. 738, 747
(1990); Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir.
1990). This court agrees that both grounds present questions
of state law, and therefore, are not cognizable in federal
federal court will not grant a state prisoner's petition
for habeas relief until the prisoner has exhausted his
available state remedies for all claims raised. Rose v.
Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A
petitioner must give the state courts a fair opportunity to
act on each of his claims before he presents those claims in
a federal habeas petition. O'Sullivan v.
Boerckel, 526 U.S. 838, 844 (1999); see also Duncan
v. Henry, 513 U.S. 364, 365 (1995). A claim remains
unexhausted until the petitioner has given the highest
available state court the opportunity to consider the claim