Raul A. Garibay v. Department of Corrections and Rehabilitation

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
DRS/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAUL A. GARIBAY,
Plaintiff - Appellant,
v.
DEPARTMENT OF CORRECTIONS
AND REHABILITATION,
Defendant - Appellee.
No. 08-56275
D.C. No. 08-CV-03376-JFW
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted March 16, 2010**
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
California prisoner Raul A. Garibay appeals pro se from the district court’s
judgment dismissing his 28 U.S.C. § 2254 habeas petition challenging his transfer
FILED
MAR 29 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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to an out-of-state prison facility. We have jurisdiction pursuant to 28 U.S.C.
§ 2253, and we affirm.
Garibay contends that transfer from a prison within California to a prison in
another state violates his due process rights. However, the Supreme Court has held
that “an interstate prison transfer . . . does not deprive an inmate of any liberty
interest protected by the Due Process Clause in and of itself.” Olim v.
Wakinekona, 461 U.S. 238, 248 (1983). Further, because confinement in another
state is “within the normal limits or range of custody which the conviction has
authorized the State to impose,” id. at 247, California law authorizing interstate
transfer of inmates to alleviate overcrowding does not create an “atypical and
significant hardship” implicating an inmate’s liberty interest under the Due Process
Clause. Sandin v. Conner, 515 U.S. 472, 484 (1995). Accordingly, the California
Supreme Court’s decision rejecting this claim was neither contrary to, nor involved
an unreasonable application of, clearly established federal law as determined by the
Supreme Court of the United States. See 28 U.S.C. § 2254(d).
To the extent Garibay contends that his transfer is in violation of Federal
Rule of Appellate Procedure 23(a), this claim fails because Garibay’s transfer to an
out-of-state facility does not involve a transfer of custody. See Fed. R. App. P.
23(a) (providing that “the person having custody of the prisoner must not transfer

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custody to another” unless in accordance with the Rule); see also Cal. Code Regs.
tit. 15, § 3379(a)(9)(I) (2009) (providing that an inmate transferred to an out-of-
state facility remains under the legal custody of the California Department of
Corrections and Rehabilitation).
AFFIRMED.

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