OpenJurist

917 F2d 566 Montoya v. Lewis

917 F.2d 566

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Leonard Lewis MONTOYA, Petitioner-Appellant,
v.
Sam LEWIS, et al., Respondents-Appellees.

No. 90-15092.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 23, 1990.*
Decided Oct. 26, 1990.

Before HUG, NELSON and LEAVY, Circuit Judges.

1

MEMORANDUM**

2

Leonard L. Montoya, an Arizona state prisoner, appeals pro se the district court's order dismissing his 28 U.S.C. Sec. 2254 habeas petition. Montoya contends that the denial of presentence incarceration credit violates his right to due process. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989), and affirm.

3

While serving concurrent prison terms of 15 and 10 years for aggravated assault and theft, Montoya pled guilty to attempting to promote prison contraband. In his habeas petition, Montoya sought credit for the time he spent in custody before sentencing on the prison contraband offense. The state court found that under Arizona law, Montoya was not entitled to credit for that time because he already was incarcerated on unrelated offenses.

4

The district court properly dismissed Montoya's habeas petition because there is no federal constitutional right to presentence incarceration credit. Lewis v. Cardwell, 609 F.2d 926, 928 (9th Cir.1979). Moreover, Montoya's contention that the state court misinterpreted Arizona law in denying him presentence credit does not present a federal constitutional question cognizable in a habeas petition. See Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.1985), cert. denied, 478 U.S. 1021 (1986).

5

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3