United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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
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Sells' parole be rescinded.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
See ECF No. 5, at 14.
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
ECF No. 5, at 16-17.
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.
apparently was convicted and incarcerated in Washington
thereafter on the underlying criminal offenses that occurred
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.
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 ...