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Sherven v. Baca

United States District Court, D. Nevada

April 30, 2019

BRIAN SHERVEN, Petitioner,
v.
ISIDRO BACA, et al., Respondents.

          ORDER

          LARRY R. HICKS, UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Procedural History and Background

         Sherven pleaded guilty to two counts of attempted lewdness with a child under the age of fourteen years (exhibit 6, pp. 9-10).[1] 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. Id.

         Sherven 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. 10, 23.

         Sherven 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 No. 10).

         II. Legal Standards & Analysis

         a. Claims Cognizable in Federal Habeas Corpus

         A state 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).

         Grounds 1 and 2

         Here, 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).

         Whether 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 habeas corpus.[2]

         b. Exhaustion

         A 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 through ...


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