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Morris v. Baker

United States District Court, D. Nevada

December 8, 2017

BRENT MORRIS, Petitioner,
v.
RENEE BAKER, et al., Respondents.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE

         This 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.

         I. PROCEDURAL BACKGROUND

         On 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).[1]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).

         On 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).

         Following 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).

         Petitioner 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. 107).

         Petitioner 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 No. 25).

         On 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.

         II. COGNIZABLE CLAIMS

         A. Ground 1

          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 § 463.155.

         (ECF No. 25 at 3-11).[2] 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.

         The 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)).

         In 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).

         Ground 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.

         Petitioner 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”).

         Petitioner's 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.

         Accordingly, 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.

         However, 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.

         B. Ineffective Assistance of Post-Conviction Appellate Counsel

          In Ground 10, petitioner asserts an unnumbered claim of ineffective assistance of post-conviction appellate counsel. (ECF No. 25 at 80). ...


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