Cruz v. Roe

90 F. App'x 520

Opinion

MEMORANDUM

**

California state prisoner David R. Cruz appeals the district court’s denial of his 28 U.S.C. § 2254 petition. Cruz contends that the state court miscomputed the amount of good time credit for time served he was entitled to by applying a section of the California Penal Code that became effective after the date of his crimes in violation of the Ex Post Facto Clause.

We affirm the district court.

I

Cruz pleaded guilty to 47 counts of committing lewd or lascivious acts on a child under 14 in violation of California Penal Code § 288(a). Count One charged acts that were alleged to have occurred between January 1, 1994 and May 31, 1994; the other 46 counts charged acts that were alleged to have occurred after January 1, 1995. The trial court sentenced Cruz to the maximum of 36 years and gave Cruz a total of 340 days of pretrial custody credits-296 actual days and an additional 15 percent, or 44 days, as “good time work credits” pursuant to California Penal Code § 2933.1.

Cruz claims that application of § 2933.1 to Count One constituted a violation of the Ex Post Facto Clause of the United States Constitution, and the trial court’s failure to inform him of his right to challenge the 15 percent cap imposed by § 2933.1 rendered his plea unknowing and involuntary. Cruz seeks only an adjustment of his sentence, not the withdrawal of his plea.

II

We review de novo the district court’s denial of Cruz’s habeas petition. Avila v. Galaza, 297 F.3d 911, 914 n. 1 (9th Cir. 2002), cert. dismissed, 538 U.S. 919, 123 S.Ct. 1571, 155 L.Ed.2d 308 (2003). We review the district court’s factual findings for clear error. Solis v. Garcia, 219 F.3d 922, 926 (9th Cir.2000).

The Antiterrorism and Effective Death Penalty Act of 1996 applies to Cruz’s petition. 28 U.S.C. § 2254; Lindh v. Murphy, 521 U.S. 320, 327-36, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

III

Cruz waived his objection to any violation by pleading guilty before the trial court. Cruz entered into a plea agreement that included substantial concessions by the government. The record indicates that Cruz clearly understood the 15 percent cap to be part of that agreement. See United States v. Escamilla, 975 F.2d 568, 570 (9th Cir.1992) (“[P]lea bargains are contractual in nature and must be measured by contract law standards.”); cf. Weaver v. Graham, 450 U.S. 24, 31-32, 101 S.Ct. 960, 67 L.Ed.2d 17 (holding that detrimental post-plea restrictions on good time credits were sufficiently punitive and retrospective as to run afoul of the Ex Post Facto Clause). After an extensive allocution, the court accepted Cruz’s guilty plea, finding it “free and voluntarily, knowingly and intelligently made.”

The fact that the court did not advise Cruz of one of his potential rights regarding the discrete issue of sentencing is not sufficient to render his plea unknowing or involuntary, Rodriguez v. Ricketts, 798 F.2d 1250, 1254 (9th Cir.1986) (stating that state courts are not required to enumerate all of the rights a defendant waives for a plea to have been entered voluntarily and understandingly); such a claim must more generally attack the character of the plea and counsel’s assistance. Hudson v. Moran, 760 F.2d 1027, 1030 (9th Cir.1985).

The district court properly denied Cruz’s petition for a writ of habeas corpus.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.