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Sells v. Nevada State Board of Parole

United States District Court, D. Nevada

July 29, 2010

WILLIAM CATO SELLS, JR., Petitioner,
v.
NEVADA STATE BOARD OF PAROLE, et al., Respondents.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE.

         This habeas matter under 28 U.S.C. § 2254 comes before the Court for a decision on the merits. In the sole ground presented, petitioner alleges that his exposure to a parole revocation hearing in Nevada constituted exposure to a second parole violation proceeding based on the same underlying parole violations in violation of the Double Jeopardy Clause.

         Background

         Petitioner William Cato Sells, Jr., was convicted in 1994 in Nevada of multiple offenses and sentenced as a habitual criminal to, inter alia, two concurrent sentences of life with the possibility of parole. He thereafter was paroled on July 7, 2009, to supervision by the State of Washington pursuant to an interstate compact.

         Petitioner alleges in the federal petition that he was arrested by Washington authorities on July 18, 2010, for, inter alia, second degree identity theft and second degree possession of stolen property.[1]

         On or about July 29, 2010, Washington authorities sent a violation report to Nevada authorities. Nevada authorities responded that same date on a form designated as a “Response to Violation Report.”

         The following responses on the form were marked by an “x” in a box:

X This acknowledges receipt of your violation report dated: 07/29/2010 x Continue supervision and notify upon disposition of pending charges.
X Continue supervision and apply any appropriate sanctions.
X Other (explain*)
*Explanation: Nevada is in the process of submitting a Violation Report to the Parole Board and requesting Mr. Sells' parole be rescinded. Please keep your case active until such a time as the Division is in receipt of the Parole Board's Order (NV) and warrant. Please continue to advise on the status of his new charges. Please feel free to contact me directly at . . . with questions or information. Thank you.

See ECF No. 5, at 14.

         Twelve days later, on August 10, 2010, a proceeding was held at the Grays Harbor County Jail in Washington. The hearing officer found Sells guilty on allegations based on identity theft, possession of stolen property, possession of burglary tools, and burglary. The hearing officer dismissed a marijuana use allegation “as there was no condition to not use drugs.” The hearing officer recommended the following:

. . . . Recommend a warrant be issued by Nevada for the return of Mr. Sells for a parole revocation hearing. I recommend that he be held in confinement pending a decision by Nevada. If Mr. Sells is not returned I recommend a 90 day sanction.

ECF No. 5, at 16-17.

         Less than 60 days later, on September 30, 2010, Nevada authorities issued a retake warrant seeking to have Sells returned to Nevada for violating his parole conditions.[2]

         Sells apparently was convicted and incarcerated in Washington thereafter on the underlying criminal offenses that occurred in Washington.

         On August 13, 2012, while incarcerated in Washington State Prison in Walla Walla, Sells filed a petition for a writ of prohibition in Nevada state district court. He alleged that the August 10, 2010, proceeding had constituted a “parole violation proceeding” and that double jeopardy barred Nevada authorities from conducting a second proceeding. ECF No. 7-3.

         The state district court denied relief on, inter alia, the following basis:

First, double jeopardy does not apply to parole revocation proceedings. Moor v. Palmer, 603 F.3d 568, 660 (9th Cir. 2010), quoting Hudson v. United States, 522 U.S. 93, 98-99 (1997); Dunn v. California Dep't ...

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