United States District Court, D. Nevada
CHRISTOPHER D. MACK, Petitioner,
DWIGHT NEVENS, et al., Respondents.
RICHARD F. BOULWARE, UNITED STATES DISTRICT JUDGE.
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).
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. (ECF No. 3).
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. (Ex.
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).
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).
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).
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).
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. . . . . . .
Right to Apply for Parole
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.
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
as petitioner claims violation of his Fourteenth Amendment
due process right to apply for parole, the Court likewise
finds petitioner ...