Michael Bankuthy v. James A. Yates

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL BANKUTHY,
Petitioner - Appellant,
v.
JAMES A. YATES,
Respondent - Appellee.
No. 07-15910
D.C. No. CV-05-00696-AWI
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Submitted April 5, 2010**
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Michael Bankuthy appeals pro se from the district court’s judgment denying
his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C.
§ 2253, and we affirm.
FILED
APR 16 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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07-15910
Our review of the record and the parties’ responses to this court’s order to
show cause indicates that this appeal is not moot because Bankuthy remains on
parole supervision. The order to show cause is discharged.
The government’s contention that we lack jurisdiction over this appeal for
lack of a certificate of appealability (“COA”) is foreclosed. See White v. Lambert,
370 F.3d 1002, 1010 (9th Cir. 2004) (holding that a COA is not necessary where a
state prisoner challenges an administrative decision regarding the execution of his
sentence).
We grant the government’s motions to strike documents Bankuthy submitted
to this court that were not presented to the district court and references in
Bankuthy’s briefs to those documents. See Fed. R. App. P. 10(a); Kirshner v.
Uniden Corp. of America, 842 F.2d 1074, 1077 (9th Cir. 1988).
Our review of the record indicates that the California courts’ rejection of
Bankuthy’s claims was neither contrary to nor an unreasonable application of
clearly established federal law. See 28 U.S.C. § 2254(d)(1).
First, Bankuthy’s due process challenges to the state’s failure to award him
day-for-day credits are without merit. Cal. Penal Code § 2933.1 clearly limits the
sentence credits Bankuthy may earn through his participation in the Inmate Work
Training Incentive Program (“IWTIP”) to fifteen percent. The other state statutes

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07-15910 3
and regulations cited by Bankuthy do not create a protected due process liberty
interest in sentence credits. See Sandin v. Conner, 515 U.S. 472, 483-85 (1995);
McLean v. Crabtree, 173 F.3d 1176, 1184-85 (9th Cir. 1999).
Second, Bankuthy’s estoppel contention does not state a violation of federal
law and is thus not cognizable in these proceedings. See Lewis v. Jeffers, 497 U.S.
764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state
law.”).
Third, Bankuthy contends that his equal protection rights were violated
because other inmates similarly situated to him have been granted day-for-day
credits for participating in IWTIP, despite statutory limitations on their accrual of
sentence credits. Our review of the record indicates that the district court correctly
determined that the evidence submitted by Bankuthy does not establish that these
inmates were similarly situated to him.
Finally, because Bankuthy failed to raise a colorable claim for relief, see
Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001), the district court did not
err in declining to hold an evidentiary hearing with regard to Bankuthy’s equal
protection claim.
AFFIRMED.

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