United States District Court, D. Nevada
C. JONES UNITED SWES DISTRICT JUDGE
Brent Eli Morris' pro se habeas petition is
before the court for a decision on the merits (ECF No. 2).
Procedural History and Factual Background
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). 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.
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.
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.
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.
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).
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;
(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.
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
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).
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).
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.
Claims Cognizable in Federal Habeas Corpus
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 ...