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Morris v. Neven

United States District Court, D. Nevada

September 18, 2017

BRENT ELI MORRIS, Petitioner,
v.
DWIGHT NEVEN, Respondents.

          ORDER

          ROBERT C. JONES UNITED SWES DISTRICT JUDGE

         Petitioner Brent Eli Morris' pro se habeas petition is before the court for a decision on the merits (ECF No. 2).

         I. Procedural History and Factual Background

         A jury convicted Morris of two felony counts of commission of a fraudulent act in a gaming establishment and four gross misdemeanor counts of entry of a gaming establishment by an excluded person (Exhibit 7A).[1] The state district court sentenced him on the four misdemeanor counts to four concurrent terms of 12 months in the Clark County Detention Center. Id. The court adjudicated Morris a habitual criminal for the felony counts and sentenced him to two concurrent terms of 8-20 years, concurrent with the misdemeanor sentences. Id. Judgment of conviction was filed on July 7, 2011. Id.

         Morris states that he was housed at Warm Springs Correctional Center (WSCC) when he received a notice of charges on May 7, 2014 (ECF No. 2, p. 3; exhs. 7B, 7F). WSCC personnel suspected that Morris was communicating with inmates at other Nevada Department of Corrections (NDOC) facilities and had received payments for providing legal services. Morris was charged with G14: failure to follow rules and regulations; MJ31: unauthorized use of equipment or mail; and MJ29: fees for legal services. Id. At the preliminary inquiry the same day, Morris stated that he was not guilty of the charges. Exh. 7C.

         On May 31, 2014, prison personnel conducted a formal disciplinary hearing. See Exhs. 7D, 7F. At the disciplinary hearing, evidence was presented that Cali Phan, sister of inmate Huy Phan, had sent JPay letters to Morris on January 31, February 21, and February 28, 2014. See exh. 7F (part 1). Each letter only included one word: the first letter said "hi, " the second said "thanks, " and the third said "thanks." Id. Corresponding deposits were made to Morris's accounts on those dates in the amounts of $300, $60, and $200. Id. Reports from law library staff indicated that on February 9, February 11, and March 3, 2014, legal mail was sent by Huy Phan with assistance from Morris. Id. Morris denied receiving payment for legal work, but asserted that Cali Phan had sent him the payments in exchange for jewelry he sold to her. Id. Morris was found guilty of two of the charged counts-MJ31 and MJ29-and was sentenced to 18 months of disciplinary segregation and referred for a loss of 180 days of statutory credits. Exhs. 7Dk, 7F. The NDOC approved the forfeiture and deducted 180 days of statutory credits. Exh. 7E.

         On July 31, 2014, Morris filed a petition for a writ of habeas corpus in the state district court, Exh. 3. The court denied the petition. Exh. 11. The Nevada Court of Appeals affirmed the denial of his petition on April 14, 2015, and remittitur issued on May 12, 2015. Exhs. 24, 25.

         On May 18, 2015, Morris mailed his federal petition for a writ of habeas corpus to this court (ECF No. 2). Respondents answered the petition, and Morris replied (ECF Nos. 7, 11).

         II. Legal Standards

         a. Antiterrorism and Effective Death Penalty Act (AEDPA) 28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), provides the legal standards for this court's consideration of the petition in this case:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         The AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693-694 (2002). This court's ability to grant a writ is limited to cases where "there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents." Harrington v. Richter, 562 U.S. 86 (2011). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see also Culler, v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398 (2011) (describing the AEDPA standard as "a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt") (internal quotation marks and citations omitted).

         A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent." Lockyer v. Andrade, 538 U.S. 63 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002).

         A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Andrade, 538 U.S. at 74 (quoting Williams, 529 U.S. at 413). The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous; the state court's application of clearly established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).

         In determining whether a state court decision is contrary to federal law, this court looks to the state courts' last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). Further, "a determination of a factual issue made by a state court shall be presumed to be correct, " and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

         b. Claims Cognizable in Federal Habeas Corpus

         A state prisoner is entitled to federal habeas relief only if he is being held in custody in violation of the constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). That is, a writ of habeas corpus is the appropriate remedy only when a petitioner is challenging the fact or the length of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 487-89 (1973). "[H]abeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence." Ramirez v. Galaza,334 F.3d 850, 859 (9th Cir. 2003). Thus, a challenge to placement in segregated housing that precludes the ...


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