Isreal v. Marshall, 96-16653

• Decision Date: 15 August 1997
• Docket Number: No. 96-16653,96-16653
• Parties: 97 Cal. Daily Op. Serv. 7616, 97 Daily Journal D.A.R. 12,273 Michael Jerome ISREAL, Petitioner-Appellant, v. Charles D. MARSHALL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 837

125 F.3d 837

97 Cal. Daily Op. Serv. 7616, 97 Daily Journal

D.A.R. 12,273

Michael Jerome ISREAL, Petitioner-Appellant, v. Charles D. MARSHALL, Warden, Respondent-Appellee.

No. 96-16653.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 15, 1997. ^*

Decided Sept. 25, 1997.

Michael Jerome Isreal, Crescent City, CA, petitioner-appellant, appearing pro se.

Greg Mangani, Deputy Attorney General, San Francisco, CA, for respondent-appellee.

Appeal from the United States District Court for the Northern District of California; Claudia Wilkin, District Judge, Presiding. D.C. No. CV 94-02216 CW.

Before: TASHIMA and THOMAS, Circuit Judges, and SEDWICK, ^** District Judge.

TASHIMA, Circuit Judge:

Appellant Michael Jerome Isreal, a California prisoner, appeals from the district court's denial of his petition for a writ of habeas corpus. He argues that his Fourteenth Amendment right to due process was violated by California's failure to transfer him to Missouri so that he could serve his outstanding Missouri sentence concurrently with his California sentence. We affirm.

I. BACKGROUND

Appellant escaped from a Missouri prison while serving a 30-year sentence. Sometime after his escape, he made his way to California where he was charged with an unrelated murder. Appellant pled nolo contendre to the California charge and was sentenced to a term of 25 years to life to run concurrently with his outstanding Missouri sentence. He is currently serving his California sentence in a California prison.

Under Missouri law, appellant cannot receive credit against his Missouri sentence for the time he is incarcerated in California. See Mo.Rev.Stat. § 558.031(3) (providing that the sentence of a person who escapes from custody in Missouri shall be interrupted until the escapee is returned to a Missouri prison). California law mandates that when any person has been convicted of two or more crimes, the last sentence shall be served concurrently with the earlier-imposed sentence(s), unless the sentencing court determines that it shall run consecutively. See Cal.Penal Code § 669. As construed by the California courts, under Penal Code § 669, a California prisoner is entitled to be transferred to the custody of a state in which he has a prior sentence to serve, if that state will not credit him with time served in California. See In re Stoliker, 49 Cal.2d 75, 315 P.2d 12 (1957). Therefore, in order to effectuate California's concurrency mandate, California law requires the California Department of Corrections ("CDOC") to permit appellant's transfer to Missouri. Id.

Appellant made several written requests to the CDOC asking to be transferred to Missouri pursuant to his rights under Stoliker. The CDOC eventually wrote a letter to the Missouri Department of Corrections ("MDOC") informing it that appellant had made such a request and that he was available for transfer to Missouri. Approximately three weeks later, the MDOC wrote back, stating that it would not take custody of appellant until he was paroled from the CDOC. Missouri's refusal to accept custody effectively renders appellant's California and Missouri sentences consecutive.

Appellant petitioned unsuccessfully in California state court for habeas relief. He appealed to the California Supreme Court, which issued a summary denial on the merits. His federal petition was denied by the district court. We review the district court's decision de novo. See Coley v. Gonzales, 55 F.3d 1385, 1386-87 (9th Cir.1995).

II. DISCUSSION

Appellant argues that he has a right to be transferred to Missouri that is protected by the Due Process Clause of the Fourteenth Amendment. We note that such a liberty interest can only arise from state law, because no right to concurrency inheres in the Due Process Clause, see United States v. Mun, 41 F.3d 409, 413 (9th Cir.1994), cert. denied, 514 U.S. 1077, 115 S.Ct. 1722, 131 L.Ed.2d 580 (1995), nor does that clause confer the right to be incarcerated in a particular state. See Olim v. Wakinekona, 461 U.S. 238, 245, 103 S.Ct. 1741, 1745, 75 L.Ed.2d 813 (1983).

A. The State-Created Right

It is undisputed that appellant has a right under California law to be permitted to be transferred to Missouri in order to effectuate concurrency. See In re Patterson, 64 Cal.2d 357, 49 Cal.Rptr. 801, 411 P.2d 897 (1966); Stoliker, 49 Cal.2d 75, 315 P.2d 12. In light of this precedent, appellant argues that he has a cognizable liberty interest not just in being permitted to return to Missouri, but also in being actually accepted into custody by the MDOC. However, California law does not-and could not-require Missouri, an independent and sovereign state, to accept custody of appellant. California law requires only what is within its power to do: to offer appellant up for transfer to Missouri. ¹ See Patterson, 49 Cal.Rptr. 801, 411 P.2d at 900; In re Tomlin, 241 Cal.App.2d 668, 50 Cal.Rptr. 805, 806-07 (1966).

Thus, California law bestows upon appellant a substantial but limited right: the right to be tendered to Missouri for transfer. We assume without deciding that this state-created right rises to the level of a federally protected liberty interest under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). ² Even assuming the existence of such a liberty interest, however, we must still determine whether the CDOC's procedures to protect it violated the Due Process Clause. See Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 902-03, 47 L.Ed.2d 18 (1976). We hold that they did not.

B. The Process That Was Due

The letter that the CDOC wrote to the MDOC made perfectly clear that, as far as California was concerned, appellant was available for transfer to Missouri. Appellant argues, however, that in order to render meaningful his right to be tendered, the letter should have informed Missouri that California was prepared physically to deliver appellant to Missouri's doorstep at California's expense. He points to the "skimpy information" contained in California's letter and contends that California has a "statutory obligation to initiate and render all cost and manpower for the transfer." We disagree.

Contrary to appellant's argument, no such obligation exists under California law. Further, since Missouri flatly refused to accept appellant into custody under any circumstances, we need not decide whether the Due Process Clause would give rise to an obligation on California's part physically to deliver appellant...