                                                                             FILED
                             NOT FOR PUBLICATION                              MAR 29 2010

                                                                         MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 RAUL A. GARIBAY,                                 No. 08-56275

               Plaintiff - Appellant,             D.C. No. 08-CV-03376-JFW

   v.
                                                  MEMORANDUM *
 DEPARTMENT OF CORRECTIONS
 AND REHABILITATION,

               Defendant - Appellee.



                     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

          *
             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
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


DRS/Research                                2                                     08-56275
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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