United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE
habeas matter comes before the Court on respondents'
motion to dismiss petitioner's first amended petition
(ECF No. 37) . Respondents assert two grounds of the petition
are not cognizable and several other grounds are unexhausted.
September 23, 2010, petitioner was charged by way of a
criminal complaint filed in justice court with three felony
counts of commission of a fraudulent act in a gaming
establishment in violation of Nevada Revised Statutes §
465.070 and § 465.088. (Ex. 2).On November 18, 2010, the
complaint was amended to include three counts of commission
of a fraudulent act in a gaming establishment and five gross
misdemeanor counts of entry of a gaming establishment by an
excluded person in violation of Nevada Revised Statutes
§ 463.155. (Ex. 4). Following a preliminary hearing,
petitioner was bound over to district court on two counts of
commission of a fraudulent act in a gaming establishment and
four counts of entry of a gaming establishment by an excluded
person. (Exs. 5 & 6). Petitioner was arraigned in
district court on December 9, 2010. (Ex. 11).
January 14, 2011, petitioner filed a motion to sever the
felony counts from the gross misdemeanor counts. (Ex. 16). An
information and an amended information charging petitioner
with both were filed in the district court on January 19,
2011, and January 20, 2011, respectively. (Exs. 18 & 19).
On January 25, 2011, the state court denied petitioner's
motion to sever but ordered that trial of the felony counts
would be bifurcated from trial of the gross misdemeanor
counts. (Ex. 22).
a jury trial on the felony counts and a bench trial on the
gross misdemeanor counts, petitioner was found guilty of all
six counts. (Exs. 45 & 49). On June 6, 2011, the court
determined that petitioner qualified as a small habitual
criminal pursuant to Nevada Revised Statutes § 207.010
and sentenced petitioner to eight to twenty years on the
felony counts and twelve months on each of the gross
misdemeanor counts, all concurrent to each other. (Ex. 49).
Judgment of conviction was entered on July 6, 2011. (Ex. 60).
appealed his convictions, and the Nevada Supreme Court
affirmed. (Exs. 52, 80 & 84). Petitioner thereafter filed
a petition and supplemental petition seeking post-conviction
habeas relief in the state court. (Exs. 87 & 94). The
district court conducted an evidentiary hearing at which it
denied the petition. (Ex. 99). A written order followed. (Ex.
appealed. (Exs. 101 & 112). On appeal, petitioner raised
six claims, all alleging ineffective assistance of counsel.
(Ex. 122). On July 1, 2014, petitioner submitted for filing
his original federal habeas petition in this case.
(See ECF No. 1). On June 10, 2015, the Nevada
Supreme Court affirmed the state trial court's order.
(Ex. 126). Remittitur issued on July 6, 2015. (Ex. 127).
Following that decision, petitioner filed an amended
petition, which is the operative petition in this case. (ECF
April 11, 2017, respondents filed the instant motion to
dismiss the amended petition. (ECF No. 37). Petitioner has
opposed (ECF No. 38), and respondents have replied (ECF No.
39). Respondents argue that Ground 1 of the petition is not
cognizable and that Grounds 2, 3, 4, 5, 6, 7, 8, 9, 10(A)(1),
10(B)(2), 10(B)(3), 10(B)(6) (in part) and 10(B)(7) are
unexhausted and/or are procedurally defaulted.
Respondents argue that Ground 1 of the amended petition is
not cognizable in this habeas action. In Ground 1, petitioner
challenges his convictions of entry of a gaming establishment
by an excluded person in violation of Nevada Revised Statutes
No. 25 at 3-11). Section 463.155 provides:
Any person who has been placed on the list of persons to be
excluded or ejected from any licensed gaming establishment
pursuant to NRS 463.151 is guilty of a gross misdemeanor if
the person thereafter enters the premises of a licensed
gaming establishment which conducts pari-mutuel wagering or
operates any race book, sports pool or games, other than slot
machines only, without first having obtained a determination
by the Commission that the person should not have been placed
on the list of persons to be excluded or ejected.
Under § 463.151, the Nevada Gaming Commission may create
a list of persons “to be excluded or ejected from any
licensed gaming establishment which conducts parimutuel
wagering or operates any race book, sports pool or games,
other than slot machines only” (“the Black
List”). Pursuant to § 463.152, whenever a person
is placed on the Black List, the Nevada Gaming Control Board
shall serve notice of such fact to such person: 1. By
personal service; 2. By certified mail to the last known
address of such person; or 3. By publication daily for 1 week
in one of the principal newspapers published in the City of
Reno and in one of the principal newspapers published in the
City of Las Vegas, Nevada.
Nevada Supreme Court concluded that petitioner was placed on
the Black List effective February 24, 1994. (Ex. 84; see
also Ex. 49 (Tr. 14) (concluding the evidence showed
petitioner had been given the statutorily required notice to
be placed on the Black List)).
Ground 1, petitioner asserts that he was never given the
notice required by § 463.152 and therefore his federal
due process rights were violated. Petitioner further asserts
that because he never received the statutory notice, the
order placing him on the Black List never took effect and
therefore his convictions under § 463.155 for violating
the Black List should be vacated. (ECF No. 25 at 9-10).
1 is not cognizable in this action to the extent it asserts
that petitioner's due process rights were violated when
he was placed on the Black List. This action is a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
As such, the only matter before the Court is whether
petitioner is in custody in violation of the Constitution,
laws or treaties of the United States, not whether
petitioner's constitutional rights were violated in a
separate - albeit related - proceeding.
disagrees, arguing the claim was considered on its merits by
the Nevada Supreme Court and thus is properly before the
Court. What the Nevada Supreme Court considered, however, was
petitioner's contention that his § 463.155
convictions were infirm because petitioner was not properly
on the Black List. The Nevada Supreme Court explicitly
declined to consider any procedural due process claim in
connection with petitioner's original placement on the
Black List. (Ex. 84) (noting that “[t]o the extent that
[petitioner] challenges the Gaming Commission's notice
provisions and his placement on the ‘Black List'
for procedural due process, this claim is not appropriately
raised on direct appeal from his criminal conviction”).
reliance on Thomas v. Bible, 694 F.Supp. 750 (D.
Nev. 1988) is also unavailing. While Thomas involved
claims that the plaintiff's due process rights were
violated when he was placed on the Black List,
Thomas was an action brought pursuant to 42 U.S.C.
§ 1983 and § 1985. Thomas thus does not
support a conclusion that petitioner can challenge his
placement on the Black List in this habeas proceeding.
to the extent Ground 1 asserts a due process claim related to
petitioner's placement on the Black List, including a
challenge to the constitutionality of § 463.151 or
§ 463.152, Ground 1 is not cognizable in this action and
must be dismissed.
Ground 1 also asserts a claim that petitioner's
convictions must be vacated because petitioner was not
properly on the Black List. Respondents do not argue that
this claim is not cognizable. Accordingly, insofar as Ground
1 of the petition asserts that petitioner's 2011
convictions are infirm because he was not properly on the
Black List, the motion to dismiss will be denied without
prejudice. Respondents may address whether this part of
Ground 1 is cognizable in their answer, along with their
response on the merits.
Ineffective Assistance of Post-Conviction Appellate
Ground 10, petitioner asserts an unnumbered claim of
ineffective assistance of post-conviction appellate counsel.
(ECF No. 25 at 80). ...