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Mack v. Nevens

United States District Court, D. Nevada

February 2, 2018

CHRISTOPHER D. MACK, Petitioner,
v.
DWIGHT NEVENS, et al., Respondents.

          ORDER

          RICHARD F. BOULWARE, UNITED STATES DISTRICT JUDGE.

         This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 comes before the Court on respondents' motion to dismiss (ECF No. 5). Petitioner has opposed. (ECF No. 7).

         I. BACKGROUND

         In this action, petitioner alleges that that the Nevada Department of Corrections (“NDOC”) violated his due process rights by rescinding an institutional parole he had been granted on July 9, 2004, and subsequently denied his statutory and Fourteenth Amendment rights to apply for parole on consecutive sentences.[1] (ECF No. 3).

         On September 8, 2003, petitioner was sentenced to several consecutive and concurrent sentences in state court No. 182002, beginning with a 36 to 156 month sentence for burglary with a firearm on Count 1 of the case.[2] (Ex. 4).[3] Petitioner was serving his Count 1 sentence when, on July 9, 2004, the Parole Board granted him parole to his next consecutive sentence “only effective . . . when eligible.” (Ex. 7). At the time, petitioner was eligible for parole from his Count 1 sentence on November 29, 2004. (See Ex. 5).

         Before November 29, 2004, arrived, however, petitioner was sentenced in another state court case, No. C181882. The judgment of conviction in No. 181882 imposed, inter alia, a 48 to 120 month sentence to run concurrently to petitioner's other cases. (Ex. 8). Under Nevada Revised Statutes § 213.1213, an inmate's parole eligibility date is determined by his longest concurrent minimum sentence. Petitioner's new, concurrent sentence of 48 to 120 months thus changed petitioner's parole eligibility date from November 29, 2004, to July 20, 2007. (See Ex. 11).

         After that point, petitioner's July 9, 2004, institutional parole never took effect. On March 6, 2007, petitioner went before the Parole Board on his Count 1 sentence and was denied parole. (Ex. 13). Petitioner again went before the Board on his Count 1 sentence on April 20, 2009, and this time was denied parole until expiration. (Ex. 12). On December 11, 2011, petitioner discharged his Count 1 sentence for burglary with a firearm in No. 182002 and began serving his next consecutive sentence. (See Ex. 14). No. formal action appears to have been taken to rescind or declare null the July 9, 2004, grant of parole. (See Ex. 16 at 50).[4]

         On December 3, 2013, petitioner filed a state habeas petition challenging the rescission of his July 9, 2004, grant of parole. (Ex. 16). The district court denied relief, and the Nevada Supreme Court affirmed. (Exs. 17 & 18). Remittitur issued on December 9, 2014. (Ex. 18).

         Petitioner dispatched the instant federal habeas petition for filing on or after September 1, 2015. (See ECF No. 1). Respondents move to dismiss the petition on the grounds that it is untimely, that it is moot, and that it fails to state a claim. . . . . . .

         II. ANALYSIS

         a. Right to Apply for Parole

         The Court will begin by addressing the petitioner's allegations that the actions taken by NDOC and/or the Parole Board have violated his statutory and Fourteenth Amendment due process rights to apply for parole.

         Petitioner asserts that respondents have violated his statutory right to apply for parole, citing Nevada Revised Statutes § 213.130(1) and § 213.120. Habeas relief cannot be predicated on “alleged errors in the application of state law.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996); see also Estelle v. McGuire, 502 U.S. 62, 68 (1991). Thus, to the extent petitioner alleges that respondents have violated his statutory right to apply for parole, such does not state a cognizable habeas claim.

         Insofar as petitioner claims violation of his Fourteenth Amendment due process right to apply for parole, the Court likewise finds petitioner ...


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