United States District Court, D. Nevada
MICHAEL S. FRENCH, Petitioner,
ROBERT LEGRAND, et al., Respondents.
D. MCKIBBEN UNITED STATES DISTRICT JUDGE.
se 28 U.S.C. § 2254 habeas petitioner Michael S.
French's petition comes before the court for final
disposition on the merits. Respondents have answered the
petition (ECF No. 19); French did not file a reply.
History & Background
habeas petition is a consolidation of two separate §
2254 petitions wherein French frames his claim as an
assertion that in state cases C210436 and C210579 his guilty
pleas were not entered knowingly, intelligently and
voluntarily in violation of his Fourteenth Amendment rights
(ECF Nos. 7, 12; see also ECF Nos. 5, 11). The
gravamen of his claim, however, is that NDOC has incorrectly
structured his sentences with the result that he will serve
eight 24 to 60-month sentences instead of seven 24 to
60-month sentences as dictated by his judgments of
C210436, French pleaded guilty to count 1: burglary; counts
2, 3, and 4: robbery; and counts 5 and 6: robbery with the
use of a deadly weapon (exhibit 1 to respondents' motion
to dismiss). The state district court sentenced him as
follows: count 1 -- two to five years; count 2 - two to five
years, concurrent with count 1; counts 3 and 4 - a term of
two to five years on each count, consecutive; and counts 5
and 6 - a term of two to five years on each count with an
equal and consecutive term of two to five years on each count
for the deadly weapon enhancement, consecutive. Exh. 3.
Judgment of conviction was entered on August 10, 2005.
C210579, French pleaded guilty to count 1: burglary; counts
2, 3, and 5: robbery with the use of a deadly weapon; and
count 4: attempted robbery with the use of a deadly weapon.
Exh. 2. The state district court sentenced him as follows:
count 1 - two to five years; counts 2, 3, and 5 - a term of
two to five years on each count plus an equal and consecutive
term of two to five years on each count for the deadly weapon
enhancement; and count 4 - a term of twelve to thirty months
plus an equal and consecutive term of twelve to thirty months
for the deadly weapon enhancement. Exh. 4. Count 1 was to run
concurrently with count 2, all other terms to run
consecutively. Id. The state district court ordered
that French serve the sentences in this case concurrently
with C210436. Id. Judgment of conviction was entered
on August 9, 2005. Id.
did not file a direct appeal. On June 18, 2014, he filed a
motion to withdraw guilty plea for each case. Exhs. 6 and 7.
He also filed a motion for modification of sentence for each
case on the same day. Exhs. 8 and 9. French claimed that he
was discussing his sentence structure with a caseworker on
April 30, 2014, and asked about what sentence he was
currently serving (see ECF No. 7, pp. 6-7). His
caseworker showed him a Nevada Department of Corrections
(NDOC) printout of the calculation of his sentences, and he
contends that he discovered at that time that the NDOC has
his sentences structured so that he will serve eight 24 to
60-month sentences instead of seven 24 to 60-month sentences
as dictated by his judgments of conviction. Id.
December 11, 2014, the Nevada Supreme Court affirmed the
state district court's denial of the two motions in each
case in two separate orders (ECF No. 7, pp. 13-15; ECF No.
12, pp. 13-15). The state supreme court concluded that, to
the extent that French claimed that the plea agreement had
been breached, his motion was untimely, and he failed to
demonstrate good cause to excuse his procedural defects.
Id. at 14. The Nevada Supreme Court also agreed with
the district court that to the extent that French challenged
the computation of his sentences, the claim must be raised in
a state postconviction habeas corpus petition and could not
be raised in a petition that also challenged the validity of
the judgment. Id. Remittitur issued on January 6,
2015 (ECF No. 7, p. 17; ECF No. 12, p. 17).
dispatched his two federal habeas petitions for mailing on
January 23, 2015 (ECF Nos. 7, 12). This court consolidated
the cases (ECF No. 5). In their answer, respondents assert
that French's sentences are structured correctly (ECF No.
Standards & Analysis
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 federal
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 ...