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Costantino v. Filson

United States District Court, D. Nevada

May 23, 2018

DEREK ANTHONY COSTANTINO, Petitioner,
v.
TIMOTHY FILSON, et al., Respondents.

          ORDER

          ROBERT C. JONES, UNITED STATES DISTRICT JUDGE.

         This habeas matter under 28 U.S.C. § 2254 comes before the Court for a final decision on the merits.

         Background

         Petitioner Derek Costantino challenges the manner in which state authorities have calculated and applied his sentences.

         Costantino was convicted in No. C120552 in the state district court on August 27, 1996, pursuant to a guilty plea, of a second-degree murder with the use of a deadly weapon committed on February 27, 1994. He was sentenced to 25 years plus an additional consecutive 25 years for use of a deadly weapon.[1] (ECF No. 1, at 5-9.)

         At the relevant time, N.R.S. 193.165 provided in pertinent part that “any person who uses a firearm or other deadly weapon . . . in the commission of a crime shall be punished by imprisonment . . . for a term equal to and in addition to the term of imprisonment prescribed by statue for the crime” with the sentence for the enhancement running “consecutively with the sentence prescribed by statute for the crime.” N.R.S. 193.165(1), as amended through 1991 Laws, ch. 403, § 6, at 1059. The statute further provided that “[t]his section does not create any separate offense but provides an additional penalty for the primary offense, whose imposition is contingent upon the finding of the prescribed fact.” N.R.S. 193.165(2), as similarly amended.

         On March 1, 2011, Costantino was granted an institutional parole.

         On September 29, 2014, Costantino filed a state post-conviction petition challenging the application and calculation of his sentences.

         In an October 19, 2015, order of affirmance, the state appellate court rejected the claims that it construed to be presented to that court on the following grounds:

In his September 29, 2014, petition appellant Derek Anthony Costantino claimed the Nevada Department of Corrections (NDOC) improperly calculated his sentence. Costantino was convicted of second-degree murder with the use of a deadly weapon. The district court sentenced Costantino to serve a term of 25 years for the primary offense and a consecutive term of 25 years for the deadly weapon enhancement. Costantino received an institutional parole for the primary offense and began serving the term for the deadly weapon enhancement.
First, Costantino claimed due to the institutional parole, his enhancement term combined with his primary term to form concurrent sentences and he should have been released upon expiration of the primary term. Costantino also asserted his primary sentence and his deadly-weapon-enhancement sentence should be treated as one for purposes of earning and applying good-time credits. Costantino's claims lacked merit. The Nevada Supreme Court has already stated “the penalty for a primary offense and the enhancement penalty imposed pursuant to NRS 193.165 are separate and distinct, and the consecutive sentences imposed must be treated as separate sentences for all purposes.” Nevada Dep't of Prisons v. Bowen, 103 Nev. 477, 481, 745 P.2d 697, 699 (1987). Accordingly, the NDOC has properly treated Costantino's primary and enhancement terms as separate sentences for all purposes. Therefore, the district court did not err in denying these claims.
Second, Costantino claimed serving the enhancement sentence separate from the primary sentence violated his right against double jeopardy. Costantino's claim lacked merit. The deadly weapon enhancement constitutes an additional penalty for the primary offense and imposition of the enhancement does not violate the double jeopardy clause. See Woofter v. O'Donnell, 91 Nev. 756, 761-62, 542 P.2d 1396, 1399-1400 (1975); see also Bowen, 103 Nev. at 479, 745 P.2d at 698 (explaining there is “no conflict between the penalty imposed by NRS 193.165 and the double jeopardy clause of the United States Constitution.”). Therefore, the district court did not err in denying this claim.

         (ECF No. 7-11; Exhibit 10.)

         In the sole ground presented in the federal petition, Costantino alleges that he has been subjected to double jeopardy and denied due process of law in violation of the Fifth and Fourteenth Amendments. He asserts, inter alia, that the state appellate court decision was “‘silent' on petitioner's raised factual issue of the ‘inherent modification' of the enhancement from consecutive to ‘concurrently' ran with the ‘institutionally paroled primary offense' as an Executive Parole Power act under NRS 213.120 once petitioner was required to sign a Consecutive/Concurrent Parole Reporting and Institutional Parole Agreement Packet on 3-4-11.” (ECF No. 4, at 4.) He maintains that allowing “the Institutional Paroled criminal offense to expire . . . now leaves petitioner restrained in custody on a non-criminal statute that by law is a non-punishable statute ‘on its own, ' thus the events . . . have now turned a non-criminal-non-convictable-non-punishable statute by it's self [sic] into a criminal act and punishable, where it is these chain of events in schemes that triggers a double jeopardy and due process violations.” (Id., at 4-5.) He continues that the sentences began to run concurrently on March 2, 2011 “under the practical effect concept.” (Id., at 6-7.) Petitioner contends that notwithstanding the Nevada state supreme court's 1987 Bowen decision, “the treatment schemes actually remained the same and [were] carried out the same . . . as under” the earlier decision in Biffath v. Warden, 95 Nev. 260, 593 ...


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