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French v. Legrand

United States District Court, D. Nevada

March 14, 2018

MICHAEL S. FRENCH, Petitioner,
v.
ROBERT LEGRAND, et al., Respondents.

          ORDER

          HOWARD D. MCKIBBEN UNITED STATES DISTRICT JUDGE.

         Pro 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.

         Procedural History & Background

         This 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 conviction.

         In 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).[1] 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. Id.

         In 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.

         French 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.

         On 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).

         French 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. 19).

         Legal Standards & Analysis

         Antiterrorism and Effective Death Penalty Act (AEDPA)

         Generally, 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 habeas petitions:

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 ...

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